ARTICLE XII
REDEMPTION OR PURCHASE OX BONDS
SEC. 58-What bonds redeemable...............................................129
SEC. 59-Redemption of part of series........................................129
Selection by lot....................................................129
Notice..............................................................129
SEC. 60-Deposit of redemption price with Trustee............................130
SEC. 61-Redemption moneys held in trust.....................................130
Payment to bondholders..............................................130
Bonds cease to bear interest........................................131
Partial redemption of a registered bond.............................131
SEC. 62-Purchase of bonds by Trustee........................................131
Price...............................................................131
Procedure.............................................................132
Interest paid by Company..............................................133
SEC.63-Redeemed and purchased bonds to be canceled...........................133
ARTICLE XIII
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY
SEC. 64-Right of Company to possess and enjoy mortgaged and pledged
property..........................................................133
SEC. 65-What Company may do without release by or consent of Trustee........133
(1) Sale of obsolete, etc., property.............................134
(2) Cancellation, alteration of contracts........................134
(3) Surrender or modification of franchises; conditions thereof..134
SEC. 66-A. Release of property by Trustee...................................134
Requirements.....................................................135
(1) Resolution.................................................135
(2) Treasurer's certificate....................................135
(3) Engineer's or independent engineer's certificate...........135
(4) Consideration; computation thereof.........................135
(5) Opinion of counsel in certain cases........................137
Additional requirements in certain eases.........................137
Disposition of prior xxxx xxxxx, cash, etc., deposited with
Trustee........................................................139
B. Release by Trustee of coal mining properties in Xxxxxxxx and
Pike Counties, Indiana, and West Tenth Street property.........139
Requirements.....................................................139
(i) Resolution..............................................139
(ii) Treasurer's certificate..................................139
(iii) Consideration............................................139
SEC. 67-Release of certain unimproved real estate...........................140
Resolution..........................................................140
Engineer's or independent engineer's certificate....................140
Deposit of consideration..............................................140
SEC.68-I. Withdrawal, use, or application of money received by Trustee
for release of property.........................................141
Requirements......................................................142
II. Disposition of money not so withdrawn, used or applied within
three years...................................................143
Purchase money mortgages on released property...................143
Substituted property subjected to the lien hereof...............144
Disposition of deposited bonds and prior xxxx xxxxx.............144
SEC. 69-A. Release of property taken by eminent domain or purchased
by governmental body..........................................144
Opinion of counsel..............................................144
Application of proceeds.........................................144
B. Redemption of bonds where substantially all mortgaged prop-
erty taken by exercise of eminent domain or sold to govern-
mental body...................................................145
Deposit of redemption moneys with Trustee.......................145
SEC. 70-Rights of receiver or trustee in possession to releases.............146
Release by Trustee after default....................................146
SEC. 71-Purchaser in good faith of released property protected..............146
ARTICLE XIV
REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT
SEC. 72-What constitutes "completed default"................................147
Declaration of principal and interest due upon completed default....148
Holders of majority in amount of bonds may annul declaration........148
SEC. 73-Trustee to notify bondholders of known defaults; exceptions.........148
SEC. 74-Trustee may take possession.........................................149
Application of income...............................................149
When Trustee shall surrender possession to Company..................149
SEC. 75-Power to sell mortgaged and pledged property........................150
Notice of sale......................................................150
SEC. 76-Judicial proceedings................................................150
General Remedies....................................................150
When action by Trustee obligatory...................................150
Remedies cumulative.................................................151
Delay, etc., no waiver of rights....................................151
Waiver of default not to extend to subsequent default...............151
Expenses of action by trustee to become additional indebtedness
hereunder.........................................................151
SEC. 77-Holders of a majority in amount of bonds may direct time, method
and place of proceedings..........................................151
SEC. 78-Appointment of a receiver...........................................152
SEC. 79-All bonds to become due and payable on sale of property.............152
SEC. 80-Property may be purchased by bondholders............................152
SEC. 81-Receipt of Trustee or sale officer as discharge of purchaser........153
SEC. 82-Sale to bar company forever.........................................153
SEC. 83-Disposition of proceeds of sale.....................................153
(1) Taxes, costs of sale, compensation of Trustee................153
(2) Principal and interest on bonds secured hereby...............154
(3) Surplus to Company...........................................154
SEC. 84-Waiver of advantage of any appraisement, valuation, stay, exten-
sion or redemption laws, and right to marshal assets..............155
SEC. 85-Right of Trustee to xxx for principal and interest as trustee of
an express trust..................................................155
Right of Trustee to recover judgment regardless of other
proceedings.......................................................155
Lien of Indenture not affected by such judgment or levy of exe-
cution thereon....................................................156
Application of moneys so collected..................................156
Powers of Trustee in reorganization, bankruptcy, etc., proceedings..156
Trustee irrevocably appointed attorney in fact of bondholders.......157
Exception...........................................................157
SEC. 86-Possession of bonds unnecessary to action by Trustee................157
SEC. 87-Limitations on rights of bondholders to avail of remedies pro-
vided by Indenture................................................158
Right to enforce payment of principal and interest absolute.........158
SEC. 88-Court may require undertaking for costs in certain cases............159
SEC. 89-Waiver of periods of grace..........................................159
Effect of abandonment, etc., of proceedings hereunder...............159
ARTICLE XV
EVIDENCE OF RIGHTS OF BONDHOLDERS AND OWNERSHIP OF BONDS
SEC. 90-Execution of instruments by bondholders.............................159
Proof of execution thereof..........................................160
(a) Notary's certificate.........................................160
(b) Certificate of Bank, etc.....................................160
Request, consent, etc., binding future bondholders..................160
SEC. 91-Ownership of temporary or coupon bonds..............................160
Ownership of registered bonds.......................................161
Submission of bonds for inspection..................................161
ARTICLE XVI
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SEC. 92-No recourse clause..................................................161
ARTICLE XVII
EFFECT OF MERGER, CONSOLIDATION, ETC.
SEC. 93-Right of Company to merge, consolidate, sell or lease all assets....162
No impairment of lien...............................................162
Lease subject to termination........................................168
Assumption of obligation............................................163
SEC. 94-Rights of successor corporation.....................................163
Execution of Indenture..............................................163
Rights of successor corporation to issue bonds and take other
action on basis of property additions.............................164
Conditions precedent................................................164
Opinion of counsel..................................................165
SEC. 95-Extent of lien in case of consolidation, etc........................165
ARTICLE XVIII
CONCERNING THE TRUSTEE
SEC. 96-Eligibility requirements............................................166
Office of Trustee not to be vacant..................................167
SEC. 97-Acceptance of trust.................................................167
Degree of care to be exercised by Trustee...........................167
SEC. 98-Limitations on liability of Trustee.................................167
SEC. 99-Recitals are by Company.............................................168
SEC. 100-Limitation on personal liability of Trustee after entry.............168
SEC. 101-Notice by Trustee to Company........................................168
SEC. 102-When Trustee protected in relying on statements of others...........169
SEC. 103-Trustee not responsible for selection of experts; exceptions........169
SEC. 104-Trustee may own bonds as individual.................................169
SEC. 105-Moneys received by Trustee hereunder to be held in trust............169
SEC. 106-Compensation of Trustee.............................................170
Indemnity of Trustee................................................170
SEC. 107-Proof of matters by certificate.....................................170
SEC. 108-Incidental powers of Trustee........................................171
SEC. 109-Trustee may not have a conflicting interest.........................171
When Trustee deemed to have a conflicting interest..................172
Definition of terms used in Section 109(d)..........................174
"Security"..........................................................174
"Securities"........................................................174
"Voting security"...................................................175
"Director"..........................................................175
"Executive officer".................................................175
"Underwriter".......................................................175
"Company"...........................................................176
Computation of percentages under subsection (d).....................176
Application of this section to separate or co-trustee...............177
SEC. 110-Obligation of Trustee as creditor of Company to account.............177
Exceptions to obligation to account.................................178
Disposition of special account......................................179
This section binding on Trustee who has resigned; exceptions........180
"Default" defined for this section..................................181
Creditor relationships excluded from this section in certain cases..181
Definition of terms in this section.................................182
"Cash transaction"..................................................182
"Self-liquidating paper"............................................182
"Trustee"...........................................................183
"Company"...........................................................183
SEC. 111-Trustee may resign; procedure.......................................183
SEC. 112-Trustee may be removed; procedure...................................183
SEC. 118-Appointment of successor Trustee; procedure.........................184
Lien of Trustee after resignation or removal........................185
SEC. 114-Appointment of separate or co-trustee...............................185
Conditions subject to which separate or co-trustee is to be
appointed.........................................................185
(1) Rights, etc., to be exercised jointly........................186
(2) Authentication, etc., of bonds...............................186
(3) Removal or resignation of separate or co-trustee; appoint-
ment of successor..........................................186
(4) No personal liability for acts of other trustees.............186
Notices to trustees.................................................187
Contents, filing, etc., of instrument appointing trustee............187
Separate or co-trustee may appoint Trustee as agent.................187
Effect of resignation, incapacity, etc., of separate or co-trustee..187
SEC. 115-Instruments to be executed by successor trustee.....................187
Requirements of predecessor on retiring.............................188
SEC. 116-Effect of merger or consolidation of Trustee........................188
ARTICLE XIX
DISCHARGE OF MORTGAGE
SEC. 117-Discharge of mortgage by Trustee....................................189
When bonds deemed paid..............................................189
ARTICLE XX
MEETINGS OF BONDHOLDERS
SEC. 118-Modification of Indenture...........................................190
SEC. 119-Call of meeting by Trustee..........................................190
Call of meeting by bondholders......................................190
Place, when called by Trustee.......................................190
Written notice......................................................190
Published notice....................................................191
Place, when called by Company or bondholders; notice................191
When notice not required............................................191
SEC. 120-Attendance at meetings..............................................191
Certificate in lieu of production of unregistered bonds.............191
SEC. 121-Persons entitled to vote at meetings................................192
Further conditions of voting........................................192
Proxies.............................................................192
SEC. 122-Temporary chairman and secretary....................................192
Permanent chairman and secretary....................................193
Inspectors of votes.................................................193
SEC. 123-Quorum..............................................................193
Notice of adjournment...............................................193
SEC. 124-Vote required for modification, alteration, etc., of Indenture
and/or rights thereunder; limitations thereon.....................194
Opinion of counsel..................................................195
SEC. 125-Record of meetings..................................................195
Conclusiveness of record............................................195
Copy of resolutions to be mailed to bondholders.....................196
Necessity of approval of resolutions by Company.....................196
When Company, Trustee and bondholders bound.........................196
Proviso.............................................................196
SEC. 126-Notation on bonds of action taken...................................196
New bonds may be issued.............................................197
Supplemental indentures may be executed; compliance with
Trust Indenture Act.................................................197
SEC. 127-Company may stipulate that provisions of this article shall be of
no effect in certain cases........................................197
ARTICLE XXI
MISCELLANEOUS
SEC. 128-Limitation of rights hereunder......................................197
SEC. 129-Investment of cash by Trustee in certain securities.................198
Investments part of pledged property................................198
SEC. 130-Deposit with Trustee of funds to pay overdue bonds and coupons......199
When Trustee to pay over to Company amount unclaimed................199
SEC. 131-Rights hereunder may be waived by Company...........................199
Company may make further covenants..................................199
Correction of ambiguities, etc......................................200
Supplemental instruments............................................200
SEC. 132-Successors and assigns..............................................200
SEC. 133-Trust Indenture Act requirements control............................200
SEC. 134-"Trust Indenture Act" defined.......................................200
SEC. 135-Titles of articles not a part hereof................................200
SEC. 136-Execution in counterparts...........................................201
Testimonium..................................................................201
Signatures and seals.........................................................201
Acknowledgments..............................................................202
Indenture, made as of the first day of May, 1940 between INDIANAPOLIS POWER
& LIGHT COMPANY, a corporation of the State of Indiana, hereinafter sometimes
called the Company, party of the first part, and AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, a national banking association, hereinafter sometimes
called the Trustee, party of the second part;
WHEREAS, the Company desires to borrow money for its corporate purposes and
to issue its bonds therefor from time to time in one or more series, and to
mortgage and pledge its property hereinafter described or mentioned, to secure
the payment of the same, such bonds to be coupon bonds and/or fully registered
bonds, authenticated by the certificate of the Trustee and issuable as in this
Indenture hereinafter provided, such coupon bonds, coupons, fully registered
bonds and Trustee's certificate to be substantially in the forms following,
respectively, with such insertions, omissions and variations as the Board of
Directors of the Company may determine in accordance with the provisions of this
Indenture:
[GENERAL FORM OF COUPON BOND]
INDIANAPOLIS POWER & LIGHT COMPANY
First Mortgage Bond
$______________ ________________Series________________ No.________________
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the State of Indiana
(hereinafter called the Company), for value received, hereby promises to pay to
the bearer, or, if this bond be registered, to the registered owner hereof, on
__________________, __________, at the office or agency of the Company in
_______________, _______________________________ Dollars in lawful money of the
United States of America, and to pay interest thereon from the date hereof at
the rate of _____________ per centum per annum in like lawful money, at said
office or agency on ____________________ and ___________________ in each year,
until the Company's obligation with respect to the payment of such principal
shall have been discharged, but only, in the case of interest due on or before
maturity, according to the tenor and upon presentation and surrender of the
respective coupons therefor hereto attached, as they severally mature.
This bond is one of an issue of bonds of the Company, issuable in series,
and is one of a series known as its First Mortgage Bonds, ______________ Series
____________, all bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking or other fund, established in
accordance with the provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series) by a Mortgage and
Deed of Trust (herein called the Mortgage), dated as of May 1, 1940, executed by
the Company to American National Bank and Trust Company of Chicago, as Trustee,
to which reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the bearers or
registered owners of the bonds in respect thereof, the duties and immunities of
the Trustee and the terms and conditions upon which the bonds are secured. With
the consent of the Company and to the extent permitted by and as provided in the
Mortgage, the rights and obligations of the Company and/or of the holders of the
bonds and/or coupons and/or the terms and provisions of the Mortgage and/or of
any instruments supplemental thereto may be modified or altered by affirmative
vote of the holders of at least sixty-six and two-thirds per centum (66 2/3%) in
principal amount of the bonds affected by such modification or alteration, then
outstanding under the Mortgage (excluding bonds disqualified from voting by
reason of the Company's interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the extension of the
maturity of the principal of this bond or the reduction in the rate of interest
hereon or any other modification in the terms of payment of such principal or
interest without the consent of the holder hereof.
The principal hereof may be declared or may become due on the conditions,
in the manner and at the time set forth in the Mortgage, upon the occurrence of
a completed default as in the Mortgage provided.
This bond shall pass by delivery unless registered as to principal in the
owner's name at the office or agency of the Company in _______________________,
and such registration noted hereon, after which no valid transfer hereof can be
made, except at such office or agency, until after registered transfer to
bearer, but after such registered transfer to bearer this bond shall be again
transferable by delivery. Such registration, however, shall not affect the
negotiability of the coupons, which shall always remain payable to bearer and
transferable by delivery. The Company and the Trustee may deem and treat the
bearer of this bond if it be not registered as to principal, or, if this bond is
registered as herein authorized, the person in whose name the same is
registered, and the bearer of any coupon hereto appertaining, as the absolute
owner for the purpose of receiving payment and for all other purposes.
No recourse shall be had for the payment of the principal of or interest on
this bond against any incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors, as such, being released by the owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until American National Bank and
Trust Company of Chicago, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, Indianapolis Power & Light Company has caused this bond
to be signed in its name by its President or one of its Vice-Presidents and its
corporate seal to be affixed hereto and attested by its Secretary or one of its
Assistant Secretaries, and interest coupons bearing the facsimile signature of
its Treasurer to be attached hereto.
Dated,
INDIANAPOLIS POWER & LIGHT COMPANY,
By
---------------------------------------
President.
Attest:
-------------------------------------
Secretary.
[GENERAL FORM OF COUPON]
$______________ ________________Series________________ No.________________
On __________________, ______, INDIANAPOLIS POWER & LIGHT COMPANY will pay
to bearer at its office or agency in ___________________,
___________________________ Dollars in lawful money of the United States of
America, as specified in its First Mortgage Bond, ______ Series ______, No.
_______, being six months' interest then due on said bond.
This coupon will not be payable if said bond shall have previously become
payable or been called for previous redemption and payment duly provided for.
----------------------------------------
Treasurer.
[GENERAL FORM OF FULLY REGISTERED BOND]
INDIANAPOLIS POWER & LIGHT COMPANY
FIRST MORTGAGE BOND
$______________ ________________Series________________ No.________________
INDIANAPOLIS POWER & LIGHT COMPANY, a corporation of the State of Indiana
(hereinafter called the Company), for value received, hereby promises to pay to
_____________________________________________ or registered assigns, on
______________, ________, at the office or agency of the Company in
___________________________________, ________________________________ Dollars in
lawful money of the United States of America, and to pay to the registered owner
hereof interest thereon from the _____________ or _______________ next preceding
the date of this bond, at the rate of _____ per centum per annum in like lawful
money, at said office or agency on _________________ and ___________________ in
each year, until the Company's obligation with respect to the payment of such
principal shall have been discharged.
This bond is one of an issue of bonds of the Company, issuable in series,
and is one of a series known as its First Mortgage Bonds, ________ Series
________, all bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking or other fund, established in
accordance with the provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series) by a Mortgage and
Deed of Trust (herein called the Mortgage), dated as of May 1, 1940, executed by
the Company to American National Bank and Trust Company of Chicago, as Trustee,
to which reference is made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the bearers or
registered owners of the bonds in respect thereof, the duties and immunities of
the Trustee and the terms and conditions upon which the bonds are secured. With
the consent of the Company and to the extent permitted by and as provided in the
Mortgage, the rights and obligations of the Company and/or of the holders of the
bonds and/or coupons and/or the terms and provisions of the Mortgage and/or of
any instruments supplemental thereto may be modified or altered by affirmative
vote of the holders of at least sixty-six and two-thirds per centum (66 2/3%) in
principal amount of the bonds affected by such modification or alteration, then
outstanding under the Mortgage (excluding bonds disqualified from voting by
reason of the Company's interest therein as provided in the Mortgage); provided
that no such modification or alteration shall permit the extension of the
maturity of the principal of this bond or the reduction in the rate of interest
hereon or any other modification in the terms of payment of such principal or
interest without the consent of the holder hereof.
The principal hereof may be declared or may become due on the conditions,
in the manner and at the time set forth in the Mortgage, upon the occurrence of
a completed default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at the office or
agency of the Company in ____________________________, upon surrender and
cancellation of this bond and upon presentation of a written instrument of
transfer, duly executed, and upon payment, if the Company shall require it, of
the transfer charges prescribed in the Mortgage, and, thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange herefor as provided in the Mortgage. The Company and
the Trustee may deem and treat the person in whose name this bond is registered
as the absolute owner hereof for the purpose of receiving payment and for all
other purposes.
No recourse shall be had for the payment of the principal of or interest on
this bond against any incorporator or any past, present or future subscriber to
the capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors, as such, being released by the owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until American National Bank and
Trust Company of Chicago, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, INDIANAPOLIS POWER & LIGHT COMPANY has caused this bond
to be signed in its name by its President or one of its Vice-Presidents and its
corporate seal to be affixed hereto and attested by its Secretary or one of its
Assistant Secretaries.
Dated,
INDIANAPOLIS POWER & LIGHT COMPANY,
By
------------------------------------------
President.
Attest:
---------------------------------------
Secretary.
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS]
This bond is one of the bonds, of the series herein designated, provided
for in the within- mentioned Mortgage.
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO,
Trustee
By
----------------------------------------
Authorized Officer.
and
WHEREAS, all things necessary to make said bonds when duly authenticated by
the Trustee and issued by the Company, valid, binding and legal obligations of
the Company, and to make this Indenture a valid, binding and legal instrument
for the security thereof, have been performed, and the issue of said bonds as in
this Indenture provided has been in all respects duly authorized;
Now, THEREFORE, THIS INDENTURE WITNESSETH: That Indianapolis Power & Light
Company, in consideration of the premises and of one dollar to it duly paid by
the Trustee at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and in order to secure the payment both
of the principal of and interest and premium, if any, on the bonds from time to
time issued hereunder, according to their tenor and effect and the performance
of all the provisions hereof (including any instrument supplemental hereto and
any modification or alteration made as in this Indenture provided) and of said
bonds, hath granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, and by these presents doth grant,
bargain, sell, release, convey, assign, transfer, mortgage, pledge, set over and
confirm unto American National Bank and Trust Company of Chicago, as Trustee,
and to its successor or successors in said trust and its and their assigns
forever, all the following described properties of the Company, that is to say:
PART I.
REAL PROPERTY IN THE COUNTY OF XXXXXX,
STATE OF INDIANA.
All the right, title, and interest of the Company in and to the following
described and numbered parcels or tracts of land situate in the County of Xxxxxx
in the State of Indiana, together with all building structures, improvements,
machinery, and equipment of every description now or hereafter affixed thereto
or stationed thereon or appertaining thereto, to wit:
GROUP ONE--MAIN GENERATING STATIONS
X. XXXXXXX STREET STATION.
Xxxxxxx Street electric generating plant has two 35,000 KW turbine
generators with two direct-connected house generators of 1750 KW capacity each.
Steam for the turbines is supplied by eight boilers each capable of delivering
160,000 pounds of steam per hour at 400 pounds pressure and 700(degree)
temperature Fahrenheit. The boilers are equipped with automatic combustion
control, forced and induced draft, complete water, steam, and coal metering
equipment, economizers, preheater superheaters, a Hydrojet ash sluicing system,
and a complete water softening system. The condensing water system includes
screen-house pumps, ducts, dams, and chlorination system. A complete transformer
substation at this plant contains six 14,583 KVA 13,800 volt to 132,000 volt
transformers, delivering output to the 132,000 volt transmission belt line that
encircles the City of Indianapolis. A 2,500 KVA 132,000 volt to 2,400 volt 3
phase transformer provides emergency service back into the power plant for
station auxiliary operation. A single circuit 132,000 volt line owned by the
Company connects this substation to lines of Public Service Company of Indiana,
located approximately one mile south of this plant, for emergency and
interchange of power. Coal handling and storage facilities at this plant include
62,000 ton storage capacity in a concrete pit served by Gantry crane and belt
convey system, and 2,600 ton capacity in boiler house bunkers, served by
conveyor belt system. Complete trackage and switching facilities connect this
plant with a railroad approximately one mile east.
Xxxxxxx Street Station is located on lands described in Parcels 1 to 16,
both inclusive, as follows:
1. A part of the southeast quarter of Section Twenty-Seven (27) Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning at a
point on the west line of said quarter section located eleven hundred
ninety-eight and thirty-three hundredths (1198.33) feet south of the north line
of said quarter section; thence east thirteen hundred fifty-eight and
four-tenths (1358.4) feet; thence north one hundred eight and sixty-seven
hundredths (108.67) feet; thence west thirteen hundred fifty-seven and
nine-tenths (1357.9) feet; thence south one hundred eight and sixty-seven
hundredths (108.67) feet, to the point of beginning, containing three and
thirty-eight hundredths (3.38) acres, more or less.
2. A part of the southeast quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning at a
point on the west line of said quarter section located thirteen hundred seven
(1307) feet south of the north line of quarter section; thence east thirteen
hundred fifty-eight and nine-tenths (1358.9) feet; thence north one hundred
eight and sixty-six hundreds (108.66) feet; thence west thirteen hundred
fifty-eight and four-tenths (1358.4) feet; thence south one hundred eight and
sixty-six hundredths (108.66) feet, to the point of beginning; containing three
and thirty-eight hundredths (3.38) acres, more or less.
3. A part of the southeast quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning at a
point on the west line of said quarter section located ten hundred eighty-nine
and sixty-seven hundredths (1089.67) feet south of the north line of said
quarter section; thence east thirteen hundred fifty-seven and nine-tenths
(1357.9) feet; thence north one hundred eight and sixty-seven hundredths
(108.67) feet; thence west thirteen hundred fifty-seven and four-tenths (1357.4)
feet; thence south one hundred eight and sixty-seven hundredths (108.67) feet to
the point of beginning; containing three and thirty-eight hundredths (3.38)
acres, more or less.
4. A part of the southwest quarter of Section Twenty-Seven (27) in Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning on the
east line of said quarter section at a point distant seven hundred sixty (760)
feet, six (6) inches, south of the northeast corner of said quarter section;
running thence south along and with the east line of said quarter section
eighty-eight (88) feet to a point; thence west parallel to the north line of
said quarter section four hundred ninety- five (495) feet to a point; thence
north parallel to the east line of said quarter section eighty-eight (88) feet
to a point; thence east parallel to the north line of said quarter section four
hundred ninety- five (495) feet to the place of beginning; containing one (1)
acre, more less.
5. A part of the southwest quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning on the
east line of said quarter section at a point distant eight hundred forty-eight
(848) feet, six (6) inches, south of the northeast corner of said quarter
section; running thence south along and with the east line aforesaid,
eighty-eight (88) feet, more or less, to a point on said east line distant
seventeen hundred forty-five (1745) feet six (6) inches north of the southeast
corner of said quarter section; thence west, parallel to the north line of said
quarter section, four hundred ninety-five (495) feet to a point; thence north,
parallel to the east line of said quarter section eighty-eight (88) feet, more
or less; thence east parallel to the north line of said quarter section four
hundred ninety-five (495) feet, to the place of beginning; containing one (1)
more or less.
6. A part of the southwest quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning on the
east line of said quarter section at a point distant sixteen hundred fifty-seven
(1657) feet six (6) inches north of the southeast corner of said quarter
section; and running thence south along and with the east line of said quarter
section two hundred sixty-four (264) feet to a point; thence west parallel to
the north line of said quarter section four hundred ninety-four (494) feet to a
point; thence north parallel to the east line of said quarter section two
hundred sixty-four (264) feet to a point; thence east parallel to the north line
of said quarter section four hundred ninety-four (494) feet to the place of
beginning; containing three (3) acres of land, more or less.
7. A part of the east half of the southeast quarter of Section Twenty-Seven
(27), Township Fifteen (15) North, Range Three (3) East, described as follows:
Beginning at a point fifty (50) feet west of the east line of the southeast
quarter of said section, six hundred seventy (670) feet south of the north line
of said quarter section; running thence south parallel to the east line of said
quarter section seven hundred forty and nine-tenths (740.9) feet to a point;
running thence west three hundred five and sixty-five hundredths (305.65) feet
to a point; thence north and parallel to the east line of said quarter section
seven hundred forty and eighty-five hundredths (740.85) feet to a point, which
point is six hundred seventy and sixty-five hundredths (670.65) feet south of
the north line of said quarter section; thence east and parallel to the north
line of said quarter section three hundred three and twenty-five hundredths
(303.25) feet to the place of beginning.
8. A part of the east half of the southeast quarter of Section Twenty-Seven
(27), Township Fifteen (15) North, Range Three (3) East, described as follows:
Beginning at a point six hundred seventy and seven-tenth (670.7) feet south of
the north line and six hundred seventy-six and five-tenths (676.5) feet west of
the east line of said quarter section; running thence south seven hundred forty
and eight-tenths (740.8) feet; thence east three hundred twenty-six and
sixty-five hundredths (326.65) feet; thence north seven hundred forty and
seventy-five hundredths (740.75) feet; thence west three hundred twenty-three
and twenty-five hundredths (323.25) feet to the place of beginning; containing
five and fifty-one hundredths (5.51) acres, more or less.
9. A part of the southeast quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning at a
point fourteen hundred eleven and five-tenths (1411.5) feet south of the north
line of said quarter section and thirteen hundred forty- seven and six-tenths
(1347.6) feet west of the east line of said quarter section; thence east six
hundred sixty-six and three-tenths (666.3) feet; thence north three hundred
seventy-seven and nine- tenths (377.9) feet; thence west six hundred sixty-three
and nine-tenths (663.9) feet; thence south three hundred seventy-seven and
eighty-five hundredths (377.85) feet to the place of beginning; containing five
and seventy-six hundredths (5.76) acres, more or less.
10. A part of the southwest quarter of Section Twenty-Seven (27) and the
southeast quarter of Section Twenty-Eight (28), all in Township Fifteen (15)
North of Range Three (3) East, described as follows: Beginning at a point in the
middle line of the old bed of White River at its intersection with the west line
of said Section Twenty-Seven (27) at a point distant six hundred five (605) feet
north of the southwest corner of said Section Twenty-Seven (27) and running
thence along and with the said middle line of the old bed of White River, south
sixty-two (62) degrees west three hundred (300) feet; thence south eighty-six
(86) degrees west two hundred (200) feet; thence north eighty-two and
three-fourths (82 3/4) degrees west three hundred (300) feet; thence north
forty-four (44) degrees west four hundred (400) feet; thence north thirty-nine
and one-half (39 1/2) degrees west seven hundred thirty-five (735) feet to the
new channel of White River; thence along and with the east side of the new
channel of White River north twenty-one (21) degrees west ninety-two (92) feet;
thence north thirty-two and one-fourth (32 1/4) degrees east two hundred seventy
feet; thence north fifty and one-half (50 1/2) degrees east eighty-three (83)
feet; thence north seventy-three and one-half (73 1/2) degrees east one hundred
twenty (120) feet; thence south eighty-one and three-fourth (81 3/4) degrees
east three hundred and eight (308) feet; thence north seventy-eight (78) degrees
east two hundred fifty-eight (258) feet; thence north forty-four and one-half
(44 1/2) degrees east two hundred eighty-eight (288) feet; thence north twenty
and one-half (20 1/2) degrees east two hundred four (204) feet; thence north
thirty (30) degrees west two hundred eighty five (285) feet to the middle line
of the old bed of said White River; thence along with the middle line of the old
bed of White River south eighty-nine and one-half (89 1/2) degrees east three
hundred (300) feet thence south eighty-seven and three-fourths (87 3/4) degrees
east one thousand one hundred (1100) feet; thence south sixty-eight and
one-fourth (68 1/4) degrees east three hundred (300) feet; thence south
thirty-five and three-fourths (35 3/4) degrees east three hundred fifty-one
(351) feet; thence south four (4) degrees west two hundred (200) feet; thence
south thirty-seven (37) degrees west three hundred (300) feet; thence south
forty-five (45) degrees west four hundred (400) feet; thence south sixty-five
(65) degrees west four hundred (400) feet; thence south fifty-five and
one-fourth (55 1/4) degrees west two hundred (200) feet; thence south fifty (50)
degrees west five hundred twenty (520) feet to the place of beginning;
containing seventy-eight and sixty-four hundredths (78.64) acres of land, more
or less, of which thirty-nine (39) are in said Section Twenty-Seven (27).
11. A part of the southwest quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning in the
north line of the said southwest quarter at a point distant four hundred
ninety-five (495) feet west of the northeast corner of said quarter section; and
running thence south, parallel to the east line of said quarter section one
thousand twenty-four (1024) feet six (6) inches to a point; thence east parallel
to the north line of said quarter section, one (1) foot to a point; thence south
parallel to the east line of said quarter section sixty-four (64) feet to a
point; thence west parallel to the north line of said quarter section, one
hundred (100) feet to a point; thence north sixty-eight and one-half (68 1/2)
degrees west two hundred forty-six (246) feet to a point; thence north
seventy-seven (77) degrees west four hundred thirty (430) feet to the middle
line of the old bed of White River; thence with the said middle line of said old
bed of White River, north four (4) degrees east, one hundred sixty-four (164)
feet to a point; thence north thirty-five and three-fourths (35 3/4) degrees
west one hundred sixty-six (166) feet to a point in the west line of the
northeast quarter of said southwest quarter section; thence north along and with
the said west line of said quarter quarter section six hundred thirteen (613)
feet more or less to the north line of said quarter section; thence east along
and with said north line eight hundred thirty-three (833) feet more or less to
the place of beginning; containing eighteen and forty- one hundredths (18.41)
acres; more or less. Also all that portion of the northwest quarter of the
southwest quarter of Section Twenty-Seven (27), Township Fifteen (15) North,
Range Three (3) East, which lies north of the middle line of the old bed of
White River; containing fourteen (14) acres.
12. A part of the southwest quarter of Section Twenty-Seven (27), Township
Fifteen (15) North, Range Three (3) East, described as follows: Beginning in the
east line of said quarter section at a point distant nine hundred thirty-six
(936) feet six (6) inches more or less, south of the northeast corner of said
quarter section; and running thence south along and with the east line aforesaid
eighty- eight (88) feet to a point in said east line distant sixteen hundred
fifty-seven (1657) feet six (6) inches north of the southeast corner of said
quarter section; thence west parallel to the north line of said quarter section
four hundred ninety-five (495) feet to a point; thence north parallel to the
east line of said quarter section eighty-eight (88) feet to a point; thence east
parallel to the north line of said quarter section four hundred ninety-five
(495) feet to the place of beginning; containing one (1) acre of land, more or
less.
13. The north 1/2 of the northwest 1/4 of Section 34, Township 15 North,
Range 3 East, in Xxxxxx County, Indiana, also part of the southwest 1/4 of
Section 27, Township 15 North, Range 3 East, in Xxxxxx County, Indiana,
described as follows:
Beginning at the southeast corner of said quarter and running north with
the east line thereof 1,393 1/2 feet; thence west parallel to the north line of
said 1/4, 494 feet, thence north parallel to the east line of said 1/4, 200
feet; thence west parallel to the north line of said 1/4, 100 feet; thence north
68 1/2 degrees west 246 feet; thence north 77 degrees west 430 feet to the
center of the old bed of White River; thence south 4 degrees west 36 feet;
thence south 37 degrees west 300 feet; thence south 45 degrees west 400 feet;
thence south 65 degrees west 400 feet; thence south 55 1/4 degrees west 200
feet; thence south 50 degrees west 520 feet to the west line of said quarter
section; thence south 605 feet to the southwest corner of said quarter; thence
east 2,655 feet to the beginning.
Also the south 1/2 of the northwest 1/4 of Section 34, Township 15 North,
Range 3 East, in Xxxxxx County, Indiana, except, however, 15 acres, more or
less, off of the entire south side of said northwest 1/4 section, described as
follows, to-wit:
Beginning at the southeast corner of said northwest quarter of said Section
34; thence north 247.5 feet; thence westerly parallel with the south line of
said northwest quarter to the west line of said Section 34; thence south 247.5
feet to the southwest corner of said northwest quarter; thence east to the point
of beginning.
Also except the following described tract:
Part of the northwest 1/4 of Section 34, Township 15 North, Range 3 East,
more particularly described as follows, to-wit:
Beginning at a point on the east line of the northwest 1/4 of Section 34,
Township 15 North, Range 3 East, 247.5 feet north of the southeast corner of
said northwest 1/4, running thence west 2676.87 feet to the west line of said
Section 34, thence north 757.75 feet to a point in said west line, thence east
2667.7 feet to a point in the east line of said northwest 1/4, thence south
along said east line of said northwest 1/4, 757.75 feet to the point of
beginning, containing 46.46 acres, more or less.
14. Part of the southeast Fractional Quarter of Section 28, Township 15
North, Range 3 East of the Second Principal Meridian, in Xxxxxx County, Indiana,
more particularly described as follows, to-wit:
Beginning at the northeast corner of said southeast quarter section,
running thence south 88 degrees 24-18/29 minutes west along the north line of
said quarter section 735.00 feet to a point on the present east bank of White
River, thence south 31 degrees 31-29/40 minutes west 1215.36 feet to a point,
thence north 50 degrees 30 minutes east 83 feet, thence north 73 degrees 30
minutes east, 120 feet, thence south 81 degrees 10-7/29 minutes east 357.93
feet, thence north 78 degrees east 258 feet, thence north 44 degrees 30 minutes
east 288 feet, thence north 20 degrees 30 minutes east 204 feet, thence north 30
degrees west 285 feet, thence south 89 degrees 30 minutes east 300 feet, thence
south 87 degrees 45 minutes east 158.60 feet to a point on the east line of said
southeast quarter section, thence north 0 degrees 42-11/29 minutes west along
said east line 336.34 feet to the northeast corner of said quarter section,
being the place of beginning.
Also, part of the southeast fractional quarter of Section 28 aforesaid,
more particularly described as follows, to-wit:
For a point of beginning, begin at a point on the east line of the
southeast 1/4 of Section 28, Township 15 North, Range 3 East, which is 605 feet
distant from and north 0 degrees 42-11/29 minutes west from the southeast corner
of said quarter section, thence south 62 degrees west 300 feet, thence south 86
degrees west 200 feet; thence north 82 degrees 45 minutes west 300 feet, thence
north 44 degrees west 400 feet, thence north 39 degrees 30 minutes west 567 feet
to a point on the west bank of White River which is the point of beginning. From
said point of beginning, continuing in a straight line in the last mentioned
course 168 feet to a point; thence north 21 degrees west 92 feet to a point;
thence north 32 degrees 15 minutes east 270 feet to a point; thence north 50
degrees 30 minutes east 83 feet to a point; thence north 73 degrees 30 minutes
east 120 feet to a point; thence south 81 degrees 10-7/29 minutes east 10 feet
more or less to a point in the west bank of White River, thence down stream with
said White River to the point of beginning.
Also part of the southeast fractional quarter of Section 28 aforesaid, more
particularly described as follows, to-wit:
For a point of beginning, begin at a point on the east line of said
southeast quarter section which is 605 feet distant from the north 0 degrees
42-11/29 minutes west from the southeast corner of said southeast one quarter
section, thence south 62 degrees 0 minutes west 300 feet, thence south 86
degrees 0 minutes west 200 feet, thence north 82 degrees 45 minutes west 300
feet; thence north 44 degrees west 400 feet to a point of beginning, thence
north 82 degrees 22-2/3 minutes West 63.94 feet, thence north 38 degrees 45
minutes west 149.60 feet, thence north 31 degrees 0 minutes west 183 feet,
thence north 83 degrees west 166.89 feet, thence north 77 degrees 0 minutes east
22.56 feet, thence north 31 degrees west 306.47 feet, thence north 32 degrees 15
minutes east 98.02 feet to a point on the west line of the land conveyed to
Indianapolis Power & Light Company by Indianapolis Light and Heat Company by
deed recorded in Town Lot Record 784, page 11 in the office the Recorder of said
Xxxxxx County, thence with the southwest line said land conveyed to said
Indianapolis Power & Light Company by said Indianapolis Light and Heat Company
south 21 degrees east 92.00 feet, thence with the southwest line of said land
conveyed to said Indianapolis Power & Light Company by said Indianapolis Light
and Heat Company south 39 degrees 30 minutes east 735.00 feet to the place of
beginning, containing 1.1018 acres, more or less.
Also, part of the southeast fractional quarter of Section 28 aforesaid,
more particularly described as follows, to-wit:
Beginning at a point which is 21.65 chains or 1428.90 feet xxx xxxx of the
east line of said southeast quarter section, and 17.43 chains 1150.38 feet due
north of the south line of said southeast quarter section, thence south 77
degrees 0 minutes west 204.20 feet, thence north 39 degrees 30 minutes west
136.80 feet, thence north 32 degrees 15 minutes east 240.12 feet, thence south
31 degrees 0 minutes east 306.47 feet to the place of beginning, containing
1.0412 acres, more or less.
Also, part of the southeast fractional quarter of Section 28, aforesaid,
more particularly described as follows, to-wit:
For a point of beginning, being at a point on the east line of the
southeast one-quarter of said Section 28, which is 605 feet distant from the
north 0 degrees 42-11/29 minutes west from the southeast corner said one-quarter
section, thence south 54 degrees west 145 feet, thence south 72 degrees 45
minutes west 200 feet, thence south 80 degrees west 100 feet, thence xxx xxxx
200 feet, thence north 69 degrees 15 minutes west 160 feet, thence north 55
degrees 15 minutes west 200 feet, thence north 49 degrees 0 minutes west 200
feet, thence north 38 degrees 45 minutes west 50.40 feet to a point of
beginning; thence continuing north 38 degrees 45 minutes west 149.60 feet,
thence north 31 degrees 0 minutes west 183 feet, thence north 83 degrees west
166.89 feet, thence south 77 degrees west 181.64 feet, thence south 39 degrees
30 minutes east 265.17 feet, thence south 82 degrees 22-2/3 minutes east 365.08
feet to the place of beginning, containing 1.953 acres more or less.
15. Part of the north east quarter and a part of the southeast quarter of
Section 28, Township 15 North, Range 3 East, described as follows: Beginning at
a point on the east line of Section 28, Township 15 North, Range 3 East, a
distance of 1517.9 feet south of the northeast corner of said Section and
running thence south 0 degrees 42 minutes east 125 feet; thence north 84 degrees
14 minutes west 209.90 feet; thence south 55 degrees 3 minutes west 162 feet;
thence south 47 degrees 15 minutes west 188.75 feet; thence south 40 degrees 55
minutes west 200 feet; thence south 41 degrees 25 minutes west 211.85 feet;
thence south 23 degrees 40 minutes west 695 feet; thence south 10 degrees 39
minutes west 136 feet; thence south 10 degrees 39 minutes west 362 feet; thence
south 12 degrees 18 minutes west 34.56 feet; thence south 31 degrees 31 minutes
44 seconds west 397.51 feet; thence north 6 degrees 50 minutes east 477.07 feet;
thence north 9 degrees 20 minutes east 500 feet; thence north 27 degrees 38
minutes east 500 feet; thence north 38 degrees 49 minutes 58 seconds east 300.97
feet; thence north 41 degrees 55 minutes east 640 feet; thence north 87 degrees
56 minutes 26 seconds east 348.95 feet; to the place of beginning; containing
9.18 acres more or less of which approximately 2.5 acres on the east side now
lies in the present bed of White River.
16. A portion of Fractional Section 28 in Township 15 North, Range 3 East,
described as follows: Beginning at the southeast corner of said Section 28, and
running thence north with the east line of said Section, 605 feet, to the center
of the old bed of White River; thence with the center of said old bed of White
River, south 54 degrees west 145 feet, to a point; thence south 72 and 3/4
degrees west 200 feet to a point; thence south 80 degrees west 100 feet to a
point; thence west 200 feet to a point; thence north 69 and 1/4 degrees west 160
feet to a point; thence north 55 and 1/4 degrees west 200 feet to a point;
thence north 49 degrees west 200 feet to a point; thence north 38 and 3/4
degrees west 200 feet to a point; thence north 31 degrees west 183 feet to low
water in new channel of said White River, thence with low water in new channel
of said White River north 83 degrees west 370 feet to a point; thence south 63
and 3/4 degrees west 290 feet to a point; thence south 76 degrees west 161 feet
to a point; thence south 69 and 3/4 degrees west 100 feet to a point; thence
south 55 and 1/4 degrees west 393 feet to a point; thence south 31 degrees west
478 feet to a point; thence south 37 and 1/4 degrees west 100 feet to a point;
thence south 54 and 3/4 degrees west 400 feet to a point; thence south 67 and
1/2 degrees west 160 feet to a point; thence south 76 degrees west 246 feet to
the south line of said Section 28; thence east with said south line of said
section, 3476 feet to the place of beginning, containing 45 acres, more or less,
except the parcels of land heretofore conveyed on the 16th day of August, 1930,
by those certain deed recorded on the 6th day of September, 1930, in Deed Record
87 at page 467 and 470. Also, part of the northeast quarter of Section 33,
Township 15 North, Range 3 East, in Xxxxxx County, Indiana, described a follows:
Beginning at the northeast corner of said Section 33, Township 15 North, Range 3
East, and running thence south with the east line of said Section 33, south no
degrees 14 minutes east, 324 feet to a point; thence north 75 degrees 36 minutes
west 623 feet to a point; thence north 64 degrees west 276 feet to a point;
thence north 8.47 feet to a point in the north line of said Section 33; thence
in an eastwardly direction with said north line of said Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx Xxxx, 851.11 feet to the place of beginning, containing 3.58 acres,
more or less.
B. C.C. PERRY PLANT, SECTION K.
C.C. Perry Plant, Section K, a steam and electric generating station
contains two 15,000 KW 250 pound steam pressure turbine generators, one 12,500
KW 600 pound topping turbine, and one 5,000 KW 600 pound house turbine. Its
boiler equipment includes ten 250 pound boilers aggregating 7,950 horse power
nominal rating, five 150 pound boilers with a combined nominal rating of 3,060
boiler horsepower, and two 650 pound boilers each capable of delivering 300,000
pounds of steam per hour continuously. The equipment includes facilities for ash
handling, coal handling, and coal storage; condensing water intake and
discharge; and boiler feed water conditioning. The plant also includes an A.C.
to D.C. conversion substation. Transmission and distribution facilities include
three transformers of 25,000 KVA total capacity, and a three phase transformer
of 25,000 KVA capacity; through which transformers this plant is connected to
the 33,000 volt transmission loop of the Company. From this plant energy is
also distributed to the 4,000 volt network of the Company. Both high pressure
and low pressure steam is delivered from this plant through a system of
underground mains to industrial and commercial customers. A 20 inch to 16 inch
250 pound steam tie line connects X.X. Xxxxx Plant, Section W, and permits
operation of both as a single unit as respects steam generating facilities.
X.X. Xxxxx Plant, Section K, is located on lands described in Parcels 17 to
28, both inclusive, as follows:
17. Lots 1, 2, and 3 in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0, 0, 0,
xxx 0 xx Xxxxxx 92 of the Donation Lands of the Town, now City, of Indianapolis,
the plat of which Subdivision is recorded in Plat Book 7, page 107, in the
office of the Recorder of Xxxxxx County, Indiana.
18. Lot 4 in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0, 0, 0, xxx 0 xx
Xxxxxx 92 of the Donation Lands of the Town, now City, of Indianapolis, the plat
of which Subdivision is recorded in Plat Book 7, page 107, in the office of the
Recorder of Xxxxxx County, Indiana.
19. Lot Seven (7) in Xxxxx Xxxxxxx'x Subdivision of Lots One (1), Two (2),
Three (3), Four (4), Five (5), and Six (6) in Square Ninety-Two (92), being the
southeast one-half of Square Ninety-Two (92) of the Donation Lands of the Town,
now City, of Indianapolis, Xxxxxx County, Indiana, the plat of which is of
record in Plat Book 7 at page 107 in the office of the Recorder of Xxxxxx
County, Indiana.
20. Lot Eight (8) in Xxxxx Xxxxxxx'x Subdivision of Lots One (1), Two (2),
Three (3), Four (4), Five (5), and Six (6) in Square Ninety-Two (92), being the
southeast one-half of Square Ninety-Two (92) of the Donation Lands of the Town,
now City, of Indianapolis, Xxxxxx County, Indiana, the plat of which is of
record in Plat Book 7 at page 107 in the office of the Recorder of Xxxxxx
County, Indiana.
21. All of Lot Nine (9) and a strip of ground of the uniform width measured
from east to west of three (3) feet taken by a line drawn parallel with the east
line of said lot off of the east side of Lot Ten (10), all in Xxxxx Xxxxxxx'x
Subdivision of Lots One (1), Two (2), Three (3), Four (4), Five (5), and Six (6)
in Square Ninety-Two (92), being the southeast one-half of the Square numbered
Ninety-Two (92) of the Donation Lands of the Town, now City, of Indianapolis,
Xxxxxx County, Indiana, the plat of which is of record in Plat Book 7 at page
107 in the office of the Recorder of Xxxxxx County, Indiana.
22. Lot Twelve (12) in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0, 0, 0,
xxx 0 xx Xxxxxx 92 in the City of Indianapolis, as per plat of said Subdivision
recorded in Plat Book 7, page 107, in the office of the Recorder of Xxxxxx
County, Indiana.
23. Lots 13 and 14 in Xxxxx Xxxxxxx'x Subdivision of the southeast half of
Square 92 of the Donation Lands of the Town, now City, of Indianapolis, the plat
of which Subdivision is recorded in Plat Book 7, page 107, in the office of the
Recorder of Xxxxxx County, Indiana.
24. Lot 15 in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0, 0, 0, xxx 0 xx
Xxxxxx 92 of the Donation Lands of the City of Indianapolis, as per plat
thereof, recorded in Plat Book 7, page 107 in the office of the Recorder of
Xxxxxx County, Indiana.
25. Lots 18, 19, 20 and 21 in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0,
0, 0, xxx 0 xx Xxxxxx 92 of the Donation Lands of the City of Indianapolis, as
per plat thereof, recorded in Plat Book 7, page 107 in the office of the
Recorder of Xxxxxx County, Indiana.
26. Lot 22 in Xxxxx Xxxxxxx'x Subdivision of Xxxx 0, 0, 0, 0, 0, xxx 0 xx
Xxxxxx 92 of the Donation Lands of the City of Indianapolis, as per plat
thereof, recorded in Plat Book 7, Page 107 in the office of the Recorder of
Xxxxxx County, Indiana.
27. The northwest half of Square Ninety-Two (92) of the Donation Lands of
the Town, now City, of Indianapolis; also all that part of Louisiana Street
added to said northwest half of said Square 92 by virtue of the vacation
proceedings had by the Board of Public Works of the City of Indianapolis, a
transcript of which was recorded on April 24, 1906, in Town Lot Record 400 at
page 210, and which part of Louisiana Street so added thereto is described as
follows, to wit: Beginning at the point of intersection of the east line of West
Street with the south line of Louisiana Street; thence north with the east line
of West Street twenty-six and five-tenths (26.5) feet to a point thence east and
parallel with the south line of Louisiana Street three hundred eighty-two and
eighty-six (382.86) feet to the northwest line of Kentucky Avenue; thence in a
southwesterly direction along the northwest line of Kentucky Avenue thirty-seven
and forty-eight hundredths (37.48) feet to the south line of Louisiana Street;
thence west with the south line of Louisiana Street three hundred fifty-six and
thirty-six hundredths (356.36) feet to its intersection with the east line of
West Street and the place of beginning. Also, all that part of Louisiana Street
added to said Northwest half of said Square Ninety-Two (92) and to the vacated
portion of Louisiana Street immediately hereinbefore described by virtue of the
vacation proceedings had by the Board of Public Works of the City of
Indianapolis, a transcript of which was recorded on September 27, 1916, in Town
Lot Record 567 at page 85 and which part so added thereto is described as
follows: Beginning at a point in the intersection of the east line of West
Street with the south line of Louisiana Street, said point being twenty-six and
one-half (26 1/2) feet north of the original south line of Louisiana Street;
thence running east along said present south line one hundred fifty-three and
thirty hundredths (153.30) feet to a point; thence running in a northwesterly
direction thirty-six (36) feet to a point, said point being thirty-three and
forty hundredths (33.40) feet north of the original south line of Louisiana
Street measured at right angles thereto; thence continuing in a northwesterly
direction fifty-four (54) feet to a point, said point being forty-four and
eighty hundredths (44.80) feet north of said original south line measured at
right angles thereto; thence continuing in a northwesterly direction sixty-eight
and sixty-five hundredths (68.65) feet to a point in the east line of West
Street, said point being thirty- four and forty-five hundredths (34.45) feet
north of the present south line of Louisiana Street; thence running south along
the said east line thirty-four and forty-five hundredths (34.45) feet to the
place of beginning. Also a strip of ground of uniform width of twelve and three
hundredths (12.03) feet measured from east to west immediately west of and
adjoining the northwest half of said square Ninety-two (92) and the vacated
portions of Louisiana Street immediately hereinbefore described, the description
of which strip of ground twelve and three hundredths (12.03) feet wide is
determined by a vacation proceeding and opening proceeding had by the Board of
Public Works of the City of Indianapolis, and which vacation proceeding was
recorded January 15, 1917, in Town Lot Record 570 at page 309, and described the
following tract of ground, to wit: Beginning at a point in the intersection of
the south line of Louisiana Street with the east line of West Street; thence
running south with the east line to the northwest line of Kentucky Avenue;
thence running southwest with the northwest line of Kentucky Avenue extended to
a point, said point being fourteen and fifty-three hundredths (14.53) feet west
of the first described line measured at right angles thereto; thence running
north parallel with and fourteen and fifty-three hundredths (14.53) feet distant
from the first described line to the south line of Louisiana Street extended
west at right angles to the first described line measured at right angles
thereto; thence running east with said extended line fourteen and fifty- three
hundredths (14.53) feet to the place of beginning; from which last described
real estate so vacated and added to the real estate hereinbefore described,
there has since been taken for the opening and widening of West Street from
Kentucky Avenue to Louisiana Street, the transcript of which proceedings for
opening and widening were recorded August 28, 1917, in Mortgage Record 719 at
page 236, the following described real estate whereby the ground just described
is limited to a width of twelve and three hundredths (12.03) feet; which ground
so opened and widened is described as follows, to wit: Beginning at a point on
the south line of Louisiana Street with the east line of West Street (said point
being seventy-five and forty-seven hundredths (75.47) lineal feet east of the
west line of West Street and twenty-nine and five hundredths (29.05) feet south
of the north line of Louisiana Street); thence running east along said south
line of Louisiana Street two and one- half (2 1/2) feet to a point; thence
running south parallel with and two and one-half (2 1/2) feet distant from the
east line of West Street, to the northwest line of Kentucky Avenue; thence
running southwest along said northwest line to the east line of West Street;
thence running north along said east line to the place of beginning; making a
street seventy-seven and ninety-seven hundredths (77.97) feet wide.
28. Part of Out Lot One Hundred Thirty-Five (135) of the Donation Lands of
the City of Indianapolis, being a twenty (20) foot strip of land between the
Condemnation Line and Line "G" as described in Declaratory Resolution No.
11,614, adopted March 14, 1924, by the Board of Public Works of the City of
Indianapolis, and between the north property line of a tract of land transferred
to Xxxxxxxx Xxxxxxxxx by the Crescent Packing Company, recorded in Town Lot
Record 731, page 175, in the office of the Recorder of Xxxxxx County, Indiana,
and a line fifty feet south of and parallel to the center line of the old main
track, St. Louis Division, P.C.C. & St. L. Railroad, more particularly described
as follows: Measure westwardly along the south line of said Out Lot 135, a total
of 773.53 feet from the southeast corner of Out Lot 135; thence northwardly,
deflecting 97 degrees and 34 minutes to the right 303.89 feet to the point of
beginning; thence northwardly along the last described line produced northwardly
8.36 feet; thence northwardly along a curve to the left, said curve having a
radius of 3,601.10 feet a distance of 343.34 feet to a point in the line 50 feet
south of and parallel to the center line of the old main track of the P.0.C. &
St. L. Railroad; thence westwardly parallel to and 50 feet distant from the said
center line of the old main track 20.01 feet to a point; thence southwardly
along a curve to the left, said curve having a radius of 3,581.10 feet and lying
west of and 20 feet distant from the first described curve, a distance of 340.87
feet to a point; thence continuing southwardly along the tangent to the curve
11.02 feet to a point; thence eastwardly deflecting 97 degrees and 34 minutes to
the left, 20.18 feet to the place of beginning, containing 0.16 acre, more or
less.
C. C.C. PERRY PLANT, SECTION W.
C.C. Perry Plant, Section W, is a steam and electric plant which is tied in
with the 33,000 volt loop of the Company, distributes energy through circuits to
the 4,000 volt A.C. network, and delivers intermediate (175 pound) pressure
steam to industrial customers and low pressure steam to the district steam
heating mains of the Company. It contains four turbine generators with an
aggregate rating of 18,200 KW and sixteen boilers with a combined nominal rating
of 9,200 boiler horsepower. The operation is chiefly non-condensing exhaust
steam being delivered to low pressure steam heating mains. The plant has boiler
house bunker capacity of 1,000 tons; and 14,000 yard and pit coal storage
facilities connected with it. A transformer substation located at this plant
contains four 5,000 KVA transformers connecting with the 33,000 volt
transmission loop of the Company. A steam tie line from 20 inch to 16 inch
connects with X.X. Xxxxx Plant, Section K.
C.C. Perry Plant, Section W, is located on lands described in Parcels 29 to
31, both inclusive, as follows:
29. Part of Lot Seventeen (17) in Blake and Ray's Subdivision of part of
out lot 148 and of the Steam Mill lot, as per plat thereof in Deed Record "T",
at page 639, in the Recorder's Office of Xxxxxx County, Indiana, more
particularly described as follows: Beginning at a point in the northerly line of
Washington Avenue formerly called the Cumberland Road and afterwards the
National Road, said point being sixty-seven and sixty-two hundredths (67.62)
feet measured eastwardly along said northerly line of Washington Avenue from a
stone set in the ground at the intersection of said northerly line of Washington
Avenue with the east line of Geisendorff Street, running thence eastwardly along
said northerly line of Washington Avenue thirty-four and ninety- two hundredths
(34.92) feet more or less to a point of intersection of said northerly line with
the west line of Lot Eighteen (18) in said Subdivision; thence northwardly along
said west line of said Lot Eighteen (18) two hundred twenty-seven and
thirty-four hundredths (227.34) feet more or less to the point of intersection
of said west line of Lot Eighteen (18) with the southerly line of Market Street,
thence west along said southerly line of Market Street twenty-six and fifty
hundredths (26.50) feet more or less to a point seventy-five and thirty-eight
hundredths (75.38) feet measured eastwardly along said southerly line of Market
Street from a stone set in the ground at the intersection of said southerly line
of Market Street with the east line of Geisendorff Street, thence southwardly at
right angles to said southerly line of Market Street two hundred twenty-three
and thirty hundredths (223.30) feet more or less to the point of beginning. Also
vacated alley lying between Lots Twenty (20) and Twenty-One (21) in said Blake
and Ray's Subdivision.
30. Lots Eighteen (18), Nineteen (19) and Twenty (20) in Blake and Ray's
Subdivision of part of out lot 148 and of the Steam Mill Lot, as per plat
thereof in Deed Record "T" at page 639 in the Recorder's Office of Xxxxxx
County, Indiana.
31. Part of Lot Twenty-One (21) in Blake and Ray's Subdivision of part of
out lot 148 and of the Steam Mill Lot, as per plat thereof in Deed Record "T" at
page 639, in the Recorder's Office of Xxxxxx County, Indiana, more particularly
described as follows: Beginning at the northwest corner of said Lot Twenty-One
(21) and running thence southwardly along the west line of said Lot Twenty-One
(21), two hundred fifty and sixty-six hundredths (250.66) feet more or less to
the northerly line of Washington Avenue, formerly called the Cumberland Road and
afterwards the National Road, thence eastwardly along said northerly line of
Washington Avenue forty-one and twenty-five hundredths (41.25) feet more or less
to a point five and thirty-four hundredths (5.34) feet measured westwardly along
the northerly line of Washington Avenue from the southeast corner of said Lot
Twenty-One (21) as the same appears on the plat aforesaid, thence northwardly at
right angles to said northerly line of Washington Avenue thirty-two and
seventy-five hundredths (32.75) feet more or less to a point on the east line of
Lot Twenty-One (21), running thence north along said east line of said lot two
hundred twenty-four and thirty-four hundredths (224.34) feet more or less to the
south line of Market Street, thence west along said south line of Market Street
forty-six (46) feet more or less to the place of beginning.
D. XXXX XXXXXX XXXXXXX.
Xxxx Xxxxxx steam and electric generating station contains three 235 pound
steam turbine generators with an aggregate capacity of 45,000 KW and fourteen
boilers with an aggregate nominal rating of 11,715 boiler horsepower. Low
pressure live steam from this station is fed to the steam heating system of the
Company serving the north side residential and apartment house area and the
downtown business district of the City of Indianapolis. Its equipment includes
switch house, control room, coal and ash handling, storage facilities, water
softening plant, condensing water system with screen houses and duct lines,
railroad switching facilities and transformer substation. The latter contains
two transformer banks: three transformers of 8,333 KVA each, and four
transformers of 3,333 KVA each; through which this station ties into the
Company's 33,000 volt transmission loop.
Mill Street Station is located on lands described in Parcels 32 to 47, both
inclusive, as follows:
32. Lot One (1) in Schurmann's First Addition to the City of Indianapolis,
as the plat thereof is recorded in Town Lot Record 71 at page 247 in the office
of the Recorder of Xxxxxx County, Indiana. Also a strip west of and adjoining
said lot, being part of Northwestern Avenue vacated. Also all that part of Mill
Street vacated, which is described as follows: Beginning at the southeast corner
of said Lot One (1) and running thence east along the south line extended east
of said Lot One (1) a distance of twenty (20) feet; thence north along the
center line of Mill Street vacated a distance of fifty (50) feet to a point;
thence west along the north line extended east of said Lot One (1) a distance of
twenty (20) feet to the northeast corner of said Lot One (1), thence south along
the east line of said Lot One (1) a distance of fifty (50) feet to the place of
beginning.
33. Lot Two (2) in Schurmann's First Addition to the City of Indianapolis
as the plat thereof is recorded in Town Lot Record 71 at page 247 in the office
of the Recorder of Xxxxxx County, Indiana. Also a strip west of and adjoining
said lot, being part of Northwestern Avenue vacated. Also all that part of Mill
Street vacated which is described as follows: Beginning at the northeast corner
of said Lot Two (2), running thence south along the east line of said Lot Two
(2) which is the west line of Mill Street vacated, a distance of fifty (50) feet
to the southeast corner of said Lot Two (2), thence east along and with the
south line extended east of said Lot Two (2) a distance of twenty (20) feet to
the center line of Mill Street vacated; thence north along the center line of
Mill Street vacated and parallel to the east line of said Lot Two (2), a
distance of fifty (50) feet to a point in the center line of Mill Street
vacated, which point intersects the north line, extended east, of said Lot Two
(2); thence west along the north line, extended east, of said Lot Two (2) to the
point of beginning.
34. Lots Three and Four (3 and 4) in Schurmann's First Addition to the City
of Indianapolis, as the plat thereof is recorded in Town Lot Record 71, at page
247, in the Office of the Recorder of Xxxxxx County, Indiana. Also a strip west
of and adjoining said Lots, being a part of Northwestern Avenue vacated. Also
all that part of said Lot Three (3) at one time opened as Nineteenth Street and
since vacated by proceedings which are of record in Town Lot Record 659, page
151. Also all that part of Mill Street which has been vacated and which is
described as follows, to wit: Beginning at the northeast corner of said Lot Four
(4) in Schurmann's First Addition and running thence south along and with the
east lines of Lots Four (4) and Three (3) a distance of ninety (90) feet to the
southeast corner of said Lot Three (3) in Schurmann's First Addition; thence
east along the south line extended east of said Lot Three (3) a distance of
twenty (20) feet to the center line of Mill Street vacated; thence north along
the center line of said Mill Street vacated and parallel to the east line of
said Lots Three (3) and Four (4), a distance of ninety (90) feet to a point in
the north line extended east of said Lot Four (4) where the north line of said
Lot Four (4) extended east intersects the center line of Mill Street vacated;
thence west along the north line extended east of said Lot Four (4) to the place
of beginning.
35. Lot Five (5) in Schurmann's First Addition to the City of Indianapolis,
as the plat thereof is recorded in Town Lot Record 71 at page 247 in the Office
of the Recorder of Xxxxxx County, Indiana. Also a strip west of and adjoining
said lot, being a part of Northwestern Avenue vacated. Also, that part of Mill
Street vacated which is described as follows: Beginning at the northeast corner
of said Lot Five (5) and running thence south along the east line of said lot, a
distance of forty (40) feet to the southeast corner of said Lot Five (5); thence
east along the south line extended east of said Lot Five (5) twenty (20) feet to
the center line of Mill Street vacated; thence north along and with the center
line of Mill Street vacated, a distance of forty (40) feet to a point where the
center line of Mill Street vacated intersects at right angles the north line
extended east of said Lot Five (5); thence west along the north line extended
east of said Lot Five (5) to the place of beginning. Also Lot Eleven (11) in
Xxxxxx Xxxxx'x Subdivision of the southwest corner of the northeast quarter of
Section Thirty-five (35), Township Sixteen (16) North, Range Three (3) East, as
the plat thereof is recorded in Plat Book 2 at page 6 in the Recorder's Office
of Xxxxxx County, Indiana, said addition sometimes being called Crane's North
Addition to the City of Indianapolis. Also a strip of ground of the uniform
width of eight and one-half (8 1/2) feet north of and adjoining Lot Eleven (11)
herein, being part of the first alley north of Eighteenth Street, vacated.
36. Lot Six (6) in Schurmann's First Addition to the City of Indianapolis,
as the plat thereof is recorded in Town Lot Record 71 at page 247 in the office
of the Recorder of Xxxxxx County, Indiana. Also a strip west of and adjoining
said Lot Six (6), being a part of Northwestern Avenue vacated. Also that part of
Mill Street vacated, east of and adjoining said Lot Six (6) described as
follows: Beginning at the northeast corner of said Lot Six (6) in Schurmann's
First Addition, being also a point in the west line of Mill Street vacated;
thence running south along and with the east line of said Lot Six (6) and the
west line of Mill Street vacated a distance of forty (40) feet, to the southeast
corner of said Lot Six (6); thence east along and with the south line extended
east of said Lot Six (6) a distance twenty (20) feet to a point in the center
line of Mill Street vacated; thence north along and with the center line of Mill
Street vacated to a point where said center line of Mill Street vacated
intersects the north line extended east of said Lot Six (6); thence west along
the north line extended east of said Lot Six (6) to the place of beginning.
37. The south half of Lot Seven (7) in Schurmann's First Addition to the
City of Indianapolis, as the plat thereof is recorded in Town Lot Record 71,
page 247, in the office of the Recorder of Xxxxxx County, Indiana. Also all that
part of Northwestern Avenue which has been vacated. Also all that part of Mill
Street, vacated, described as follows, to wit: Beginning at the southeast corner
of said Lot Seven (7) and running thence east along the south line extended east
of said Lot Seven (7) a distance of twenty (20) feet to the center line of Mill
Street vacated; thence north along and with the center line of Mill Street
vacated to a point where said center line of Mill Street intersects the center
line extended east of said Lot Seven (7); thence west a distance of twenty (20)
feet to a point at the center of the east line of said Lot Seven (7) in
Schurmann's First Addition; thence south along the east line of said Lot Seven
(7) to the point of beginning.
38. The north half of Lot Seven (7) in Schurmann's First Addition to the
City of Indianapolis, as the plat thereof is recorded in Town Lot Record 71 at
page 247 in the office of the Recorder of Xxxxxx County, Indiana. Also a strip,
west of and adjoining said Lot, being part of vacated Northwestern Avenue. Also
the south half of vacated Nineteenth Street from Northwestern Avenue to Mill
Street, being seventeen and one-half (17 1/2) feet from the north to south,
adjoining the above described Lot Seven (7) in Schurmann's First Addition on the
north as such vacation proceedings are recorded in Town Lot Record 524 at page
184. Also all that part of Mill Street added to said Lot Seven (7) and to the
south half of said Nineteenth Street vacated described as follows: Beginning at
a point seventeen and one-half (17 1/2) feet north of the northeast corner of
said Lot Seven (7); thence running south along the east line of said vacated
Nineteenth Street and the east line of said Lot Seven (7) to a point where the
center line of said Lot Seven (7) intersects the east line thereof; thence east
a distance of twenty (20) feet to the center line of Mill Street vacated; thence
north along the center line of Mill Street vacated to a point where the center
line of Mill Street vacated intersects the center line of Nineteenth Street
vacated; thence west a distance of twenty (20) feet to the place of beginning.
39. Xxx Xxxxx (0), Xxxx (0), Xxx (00), Xxxxxx (11), and Twelve (12) in
Schurmann's First Addition to the City of Indianapolis, as the plat thereof is
recorded in Town Lot Record 71 at page 247 in the office of the Recorder of
Xxxxxx County, Indiana. Also a strip west of and adjoining said lots, being part
of Northwestern Avenue vacated. Also a strip adjoining said lots on the east,
being part of Mill Street vacated, described as follows: Beginning on the center
line of Nineteenth Street vacated where it intersects the west line of Mill
Street vacated and running east to the center line of Mill Street vacated;
thence north along and with the center line of Mill Street vacated to the point
where said center line of Mill Street vacated intersects the southwest line of
the right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway
Company; thence northwesterly along said southwest line of said Railway Company
to the point where said southwest line intersects the east line of said Lot Ten
(10) in Schurmann's First Addition aforesaid; thence south along and with the
east lines of Lots Ten (10), Nine (9), and Eight (8), in Schurmann's First
Addition aforesaid, and the east line of Nineteenth Street vacated to the point
of beginning. Also a strip of ground seventeen and one-half (17 1/2) feet wide
from north to south, being the north half of Nineteenth Street vacated adjoining
said Lot Eight (8) on the south thereof as such vacation proceedings are shown
in Town Lot Record 524 at page 184 in the records in the Recorder's Office of
Xxxxxx County, Indiana.
40. Lots Thirteen (13), Fourteen (14), Fifteen (15), Sixteen (16),
Seventeen (17), Eighteen (18), Nineteen (19) and Twenty (20) in Schurmann's
First Addition to the City of Indianapolis, as the plat thereof is recorded in
Town Lot Record 71 at page 247 in the office of the Recorder of Xxxxxx County,
Indiana. Also a strip west of and adjoining said lots, being part of Mill Street
vacated, described as follows: Beginning at the southwest corner of Lot Twenty
(20) in Schurmann's First Addition, thence running west along and with the said
south line extended west, a distance of twenty (20) feet to the center line of
Mill Street vacated; thence north along said center line of Mill Street vacated
to the point where said center line of Mill Street vacated intersects the
southwest right of way line of the Cleveland, Cincinnati, Chicago and St. Louis
Railway Company; thence southeast along said right of way line to the point
where said right of way line intersects the west line of Lot Thirteen (13) in
Schurmann's First Addition; thence south along and with the west lines of Lots
13, 14, 15 16, 17, 18, 19 and 20 in Schurmann's First Addition, a distance of
four hundred thirty-one (431) feet to the southwest corner of said Lot 2 being
the point of beginning.
41. Lots Four (4), Five (5), and Six (6) in Xxxxxx Xxxxx'x Subdivision of
the Southwest corner of the northeast quarter of Section Thirty-Five (35),
Township Sixteen (16) North, Range Three (3) East as the plat thereof is
recorded in Plat Book 2 at page 6 in the office the Recorder of Xxxxxx County,
Indiana, said addition sometimes being called Crane's North Addition to the City
of Indianapolis; also a strip of ground of the uniform width of eight and
one-half (8 1/2) feet north of and adjoining said lots by virtue of vacation
proceedings in Town Lot Record 767, page 210.
42. Lot Seven (7) in Xxxxxx Xxxxx'x Subdivision of the southwest corner of
the northeast quarter of Section Thirty-Five (35), Township Sixteen (16) North,
Range Three (3) East, as the plat thereof recorded in Plat Book 2 at page 6 in
the office of the Recorder of Xxxxxx County, Indiana, said addition sometimes
being called Crane's North Addition to the City of Indianapolis; also a strip of
ground of the uniform width of eight and one-half (8 1/2) feet north of and
adjoining said Lot by virtue of vacation proceedings in Town Lot Record 767 page
21
43. Lot Eight (8) in Xxxxxx Xxxxx'x Subdivision of the southwest corner of
the northeast quarter of Section Thirty-Five (35), Township Sixteen (16) North,
Range Three (3) East, as the plat thereof is recorded in Plat Book 2 at page 6
thereof in the office of the Recorder Xxxxxx County, Indiana, said addition
sometimes being called Crane's North Addition to the City of Indianapolis; also
a strip of ground of the uniform width of eight and one-half (8 1/2) feet north
of and adjoining said Lot by virtue of vacation proceedings in Town Lot Record
7( page 210.
44. Lots Nine (9) and Ten (10) in Xxxxxx Xxxxx'x Subdivision the southwest
corner of the northeast quarter of Section Thirty-Five (35), Township Sixteen
(16) North, Range 3 East, as the plat thereof is recorded in Plat Book 2 at page
6 in the office of the Recorder of Xxxxxx County, Indiana, said addition
sometimes being called Crane's North Addition to the City of Indianapolis. Also
a strip of ground of the uniform width of eight and one-half (8 1/2) feet north
of and adjoining Lots 9 and 10, being part of the alley north of 18th street
vacated. Also a strip of ground of the uniform width of twenty-five (25) feet
east of and adjoining Lot 9 and the eight and one-half (8 1/2) foot vacated
strip north of and adjoining said Xxx 0, xxxxx xxxx xx Xxxx Xxxxxx vacated.
45. A strip of ground twenty-five (25) feet in width off of the entire
south side of Lot Five (5) in Commissioners' Subdivision, in partition of the
Estate of Xxxxxx Xxxxxxxx, of part of the northwest quarter of Section
Thirty-Five (35), Township Sixteen (16) North, Range Three (3) East, except that
part of said Lot Five (5) lying west of the Indiana Central Canal together with
all that part of Northwestern Avenue adjoining the same, since vacated, as the
plat of said sub-division is recorded in Land Record 3, pages 345-354 in the
office of the Recorder of Xxxxxx County, Indiana.
46. Lots numbered twelve (12) and thirteen (13) in Xxxxxx Xxxxx'x
Subdivision in the City of Indianapolis, of the Southwest Quarter of the
Northeast Quarter of Section 35, Township 16 North, Range 3 East, in Xxxxxx
County, Indiana, as the plat thereof is recorded in Plat Book 2, page 6, in the
Recorder's Office of Xxxxxx County, Indiana, which subdivision is commonly
called and known as "Crane's North Addition" to the City of Indianapolis, Xxxxxx
County, Indiana;
Also a strip of ground 8.6 feet wide from north to south north of and
adjoining said lots 12 and 13, being all of the vacated alley north of 00xx
Xxxxxx from the west property line of Mill Street to the east property line of
the first alley east of Northwestern Avenue as the same was vacated by
proceedings of record in Town Lot Record 821 at page 538, in the Recorder's
Office of Xxxxxx County, Indiana;
Also a strip of ground 7.5 feet wide from east to west lying west of and
adjoining said lot 13, being the east half of the first alley east of
Northwestern Avenue vacated from the north property line of the alley north of
00xx Xxxxxx to a point 39.5 feet south thereof, which vacation proceedings are
of record in Town Lot Record 821, page 553 in the Recorder's Office of Xxxxxx
County, Indiana.
47. Lots Fourteen (14) and Sixteen (16) in Xxxxxx Xxxxx'x Subdivision of
the Southwest Quarter of the Northeast Quarter of Section 35, Township 16 North,
Range 3 East, in the City of Indianapolis, the plat of which Subdivision is of
record in Plat Book 2, page 6, in the Recorder's Office of Xxxxxx County,
Indiana, and which said Subdivision is some times known and designated as
"Crane's Subdivision to the City of Indianapolis, Xxxxxx County, Indiana."
Also a strip of ground 10 feet in width west of and adjoining the entire
west ends of each of said lots which was a part of Northwestern Avenue as the
same has been vacated and is shown by proceedings recorded in Town Lot Record
332, page 478 of the Records in the Recorder's Office of Xxxxxx County.
Also a strip of ground 7.5 feet in width from east to west east of said Lot
14, being the vacated part of the alley adjoining such lot which vacation
proceedings affected all that part of the first alley east of Northwestern
Avenue from the north property line of the alley north of 00xx Xxxxxx to a point
39.5 feet south thereof.
GROUP TWO--SUBSTATIONS
The substations of the Company, other than those hereinbefore mentioned as
located at Xxxxxxx Street Station, X.X. Xxxxx Plant Section K, X.X. Xxxxx Plant
Section W, and Mill Street Station, are as follows:
TRANSMISSION SUBSTATIONS
Northeast Substation. Four 10,000 KVA 132,000 volt to 33,000 volt
transformers, located on land described in Parcels 48 and 49, as follows:
48. Part of the Southeast 1/4 of Section 5, Township 16 North, Range 4 East
of the Second Principal Meridian in Xxxxxx County, Indiana, more particularly
described as follows, to- wit:
Beginning at a point on the south line of the said Southeast Quarter
Section 70.5 feet more or less, east of the southwest corner thereof, thence
northeast along and with the east property line of the Lake Erie and Western
Railroad Depot Grounds a distance of 464 feet more or less to a point, said
point being the northeast corner of the Lake Erie and Western Railroad Depot
Grounds; thence south a distance of 348.23 feet more or less to a point in the
south line of said 1/4 section; thence rest along and with the said south line a
distance of 306.65 feet more or less to the place of beginning.
49. A parcel of land lying and being in the southeast quarter of section 5,
Township 16 North, Range 4 East, more particularly described as follows:
Beginning at a point on the south line of the said. Southeast Quarter
section 377.15 feet more or less, east of the southwest corner thereof; thence
north 348.23 feet, more or less, to a point, said point being the northeast
corner of the Lake Erie and Western Railroad Depot Grounds; thence northwest
along the north line of said Depot Grounds a distance of 75 feet, more or less,
to the southeast right of way property line of said Railroad; thence northeast
along and with said right of way line to a distance of 236.57 feet more or less
to a point; thence south, a distance of 125.32 feet more or less to a point;
thence east from said point parallel to the south line of the said A section a
distance of 400 feet more or less to a point; thence south a distance of 450
feet, more or less, to a point in the south line of said 1/4 section; thence
west along and with the said south line a distance of 500 feet more or less to
the place of beginning.
Southeast Substation. Four 10,000 KVA 132,000 volt to 33,000 volt
transformers, located on land described in Parcel 50, as follows:
50. Part of the east 1/2 of the southeast 1/4 of Section 23, Township 15
North, Range 4 East of the Second Principal Meridian in Xxxxxx County, Indiana,
more particularly described as follows, to-wit:
Beginning at a point in the west line of the east 1/2 of the southeast 1/4
of said Section 23, Township 15 North, Range 4 East, 170.83 feet north of the
intersection of said west line with the center line of the Michigan Road; thence
running north along and with the said west line of said east 1/2 of the
southeast 1/4 of Section 23, Township 15 North, Range 4 East, a distance of 400
feet to a point; thence east parallel with the north line of said half quarter
section a distance of 370 feet; thence south parallel with the west line of said
half quarter section a distance of 678 feet to a point; thence continuing at an
angle of 37 degrees, 43 minutes to the right a distance of 134.45 feet to a
point in said center line of the Michigan Road; thence north west along and with
said center line of the Michigan Road, a distance of 67.5 feet to a point;
thence northwardly a distance of 340.35 feet to a point 233 feet east of said
west line of said east half of said Quarter Section; thence westwardly a
distance of 233 feet to the point of beginning, containing 4.47 acres, more or
less.
Southwest Substation. Four 10,000 KVA 132,000 volt to 33,000 volt
transformers, located on land described in Parcels 51 and 52, as follows:
51. Part of Lot 3 in Garden Park Addition to the City of Indianapolis, as
per plat thereof recorded in Plat Book 13, page 91, in the office of the
Recorder of Xxxxxx County, Indiana, more particularly described as follows:
Beginning in the northwest corner of said Lot 3 and running thence east along
and with the north line a distance of 200 feet, more or less to a point; thence
south parallel with the west line a distance of 400 feet, more or less to a
point; thence west and parallel with the north line 200 feet, more or less, to a
point in the west line of said Lot 3, thence north along the west line a
distance of 400 feet more or less to the place of beginning.
52. Lot numbered Four (4) in Garden Park Addition, the plat of which
appears of record in Plat Book 13, page 91 thereof in the Office of the Recorder
of Xxxxxx County, Indiana.
Northwest Substation. Four 10,000 KVA 132,000 volt to 33,000 volt
transformers, located on land described in Parcel 53, as follows:
53. Part of the southeast Quarter of Section 20, Township 16 North, Range 3
East, described as follows:
Beginning at the southwest corner of said quarter and running north with
the west line thereof 664 feet, thence east parallel to the south line of said
Quarter 645 feet to the center of Little Eagle Creek, thence with the center of
said Creek with the meanderings thereof south 3 degrees west 269 feet; thence
south 26 1/2 degrees east 117 feet, thence south 3/4 degrees east 174 feet,
thence south 43 degrees west 161 feet to the south line of said Quarter Section,
thence west 582 feet to the beginning, containing 10 acres, except the
following part thereof:
Beginning on the south line of said Quarter Section at a point 304.15 feet
east of the south west corner thereof, and running east along the south line of
said Quarter Section 100 feet to a point; thence north parallel to the west line
of said Quarter Section 261 feet to a point; thence west parallel to the south
line of said Quarter Section 100 feet; thence south 261 feet to the place of
beginning, containing 60/100 of an acre, more or less.
DISTRIBUTION SUBSTATIONS
00xx Xxxxxx Substation. One 2,000 KVA 33,000 volt to 4,000 volt phase
transformer, located on land described in Parcel 54, as follows:
54. Part of Lots 55 and 56 in E.T. Xxxxxxxx'x Subdivision of Lots to 23,
both inclusive, of E.T. and X.X. Xxxxxxxx'x Addition to the City of
Indianapolis, the plat of which Subdivision is recorded in Plat Book 3, page
123, in the office of the Recorder of Xxxxxx County, Indiana; which part of said
lots is described as follows: Beginning at the southwest corner of said Lot 55;
thence east along the north line of 00xx Xxxxxx 68 feet to a point; thence north
parallel to the west line of Columbia Avenue 60 feet to a point in said Lot 56;
thence west parallel with the north line of 00xx Xxxxxx 68 feet to the west line
of Lot 56; thence south parallel to the west line of Columbia Avenue along the
west line of Lots 56 and 55, sixty feet to the place of beginning.
Martindale Substation. Four 2,500 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcels 55 and 56, as follows:
55. Lot No. 15 in Block No. 4 in Xxxxx Xxxxx Addition to the City of
Indianapolis, the plat of which is recorded in Plat Book 6 at page 122, in the
office of the Recorder of Xxxxxx County, Indiana.
56. Xxx Xx. 00 in Block No. 4 in Xxxxx Xxxxx Addition to the City of
Indianapolis, the plat of which is recorded in Plat Book 6 at page 122, the
office of the Recorder of Xxxxxx County, Indiana.
Broadripple Substation. Four 1667 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 57, as follows:
57. Lots Ninety-Seven (97), Ninety-Eight (98) and Ninety-Nine (99) in
Bellaire, an Addition to the City of Indianapolis, Xxxxxx County, Indiana, as
the plat of said addition is recorded in Plat Book 17 at page 141 in the office
of the Recorder of Xxxxxx County, Indiana.
00xx Xxxxxx Substation. One 2,000 KVA 33,000 volt to 4,000 volt
transformer, located on land described in Parcel 58, as follows:
58. Part of the northwest quarter of Section 6, Township 16 North, Range 4
East, described as follows: Beginning at a point which is 530.86 feet east of
the west line and 1180.13 feet north of the south line of said quarter section,
said point being also the southeast corner of 00xx Xxxxxx xxx Xxxxxx Xxxxxx in
the City of Indianapolis; thence south on and along the east line of Xxxxxx
Street 58.21 feet to a point; thence east parallel with the south line of 61st
Street, 148 feet to a point, thence north parallel with the east line of Xxxxxx
Street 58.21 feet to a point in the south line of 00xx Xxxxxx; thence west on
and along the south line of 61st Street, 148 feet to the place of beginning.
Brightwood Substation. Four 2,500 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 59, as follows:
59. Lots Seven (7), Eight (8), Nine (9), and Ten (10) all in the
Subdivision made by Xxxx Xxxxxxxx and Xxxxx X. Xxxxxxxx of Lot or Block Sixteen
(16) in Xxxxxxxxx and Xxxxxxx'x Brookside Addition to the City of Indianapolis;
the plat of said Xxxxxxxx'x Subdivision appearing of record in the office of the
Recorder of Xxxxxx County, Indiana, in Plat Book 7 at page 49 thereof.
10th and Xxxxxxx Substation. One 3,125 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 60, as follows:
60. The North Half of Lot Three (3) in Xxxxxxx Highlands, Second Section,
an Addition to the City of Indianapolis, as per plat thereof recorded in Plat
Book 21 page 104 in the office of the Recorder of Xxxxxx County, Indiana.
English Avenue Substation. Four 2,500 KVA 33,000 volt to 4,000 volt
transformers located on land described in Parcel 61, as follows:
61. Part of the south west 1/4 of Section 8, Township 15 North, Range 4
East, being a part of Block 1 of Canby Park, the plat of which is recorded in
Plat Book 14, page 190, in the office of the Recorder of Xxxxxx County, Indiana,
being more particularly described as follows:
Beginning on the north line of said 1/4 section, at a point 406.70 feet
west of the north east corner thereof; thence west along the north line of said
Quarter Section 110.00 feet; thence south at right angles to the north line of
said Quarter Section, 145.00 feet to the north line of Southeastern Avenue;
thence south east along the north line of Southeastern Avenue 114.98 feet;
thence north on a line at right angles to the north line of said Quarter Section
177.88 feet to the place of beginning.
Beech Grove Substation. Pour 1,000 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 62, as follows:
62. Part .of the Northeast quarter of Section Twenty-Nine (29), Township
Fifteen (15) North, Range Four (4) East, described as follows, to wit: Beginning
at a point three hundred forty-six and eighty-hundredths (346.80) feet east of
the northwest corner of said quarter section; running thence east along the
north line of said quarter section one hundred and fifty (150) feet to a point;
thence south and parallel to the east line of said quarter section three hundred
thirty-five and eighty- hundredths (335.80) feet to a point; thence west and
parallel to the north line of said quarter section one hundred and fifty feet
(150) to a point; said point being three hundred forty-seven and six hundredths
(347.06) feet east of the west line of said quarter section; thence north and
parallel to the east line of said quarter section three hundred thirty-five and
eighty hundredths (335.80) feet to the place of beginning, containing one and
sixteen hundredths (1.16) acres more or less.
Virginia Avenue Substation. Six 2,000 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 63, as follows:
63. Part of Lot 5 in X'Xxxx and Xxxxxxx'x Subdivision of Square 101 of the
Donation Lands of the Town, now City, of Indianapolis, the plat of which
subdivision is recorded in Plat Book 2, page 14, in the office of the Recorder
of Xxxxxx County, Indiana, described as follows: Beginning at the northwest
corner of said Lot 5 on Virginia Avenue; running thence east 45 degrees north 48
feet, thence eastwardly to East Street to a point 18 feet north of the southeast
corner of Lot 5; thence 18 feet south to the southeast corner of said Lot 5;
thence along the south line of said Lot 5 according to said recorded plat, to
Virginia Avenue; thence north 45 degrees west 26 feet to the place of beginning.
West Indianapolis Substation. Four 1,667 EVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 64, as follows:
64. Lots One (1), Two (2) and Three (3) and part of a vacated alley lying
immediately south of Lot Three (3) in Moudy's West Indianapolis Addition to the
City of Indianapolis, Indiana, reference being made to the plat thereof as
recorded in Plat Book 11, page 77, in the office of the Recorder of Xxxxxx
County, Indiana; excepting a strip of ground two (2) feet of equal width off of
the entire west side of said Lot Three (3), and said two (2) foot strip shall
extend across that portion of said vacated alley lying immediately south of said
Lot Three (3) to its intersection with the north line of the right of way of the
Indianapolis and Vincennes Railroad; more particularly described as follows, to
wit: Beginning at the northeast corner of said Lot One (1), running thence west
upon and along the north line of said Lots One (1), Two (2) and Three (3), one
hundred eighteen (118) feet to a point two (2) feet east of the northwest corner
of said Lot Three (3); thence south upon and along a line parallel to the west
line of said Lot Three (3) and extended through a vacated alley one hundred
seventy-eight and forty-six hundredths (178.46) feet to the north line of the
right of way of said Indianapolis and Vincennes Railroad Company; thence
northeastwardly upon and along the north line of said right of way one hundred
seventy-six and six-tenths (176.6) feet to the southeast corner of said Lot One
(1); thence north upon and along the east line of said Lot One (1) fifty-one and
seven-tenths (51.7) feet to the place of beginning.
Xxxx Xxxx Xxxxxx Xxxxxxxxxx. Xxxxx 0000 XXX 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 65, as follows:
65. The east half of lot numbered Six (6) in Xxxxxx Xxxxx' Subdivision of
Out Lot Fifty- Nine (59) of the Donation Lands to the City of Indianapolis, the
plat of which is recorded in Land Record 5, page 63, in the office of the
Recorder of Xxxxxx County, Indiana, except that part of said east half of said
Lot 6 taken for the opening and widening of Wabash Alley (now Wabash Street) by
proceedings as shown in Land Record "S", page 64.
Main Street (Speedway City) Substation. One 3900 KVA 33,000 to 4,000 volt
transformer, located on land described in Parcel 66, as follows:
66. Lots numbered 79 and 80 in Speedway City, an addition to the City of
Indianapolis, now in the Town of Speedway, Xxxxxx County, Indiana, as per plat
thereof, recorded in Plat Book 17, page 2 in the office of the Recorder of
Xxxxxx County, Indiana.
Xxxxx Avenue Substation. Four 1667 KVA 33,000 volt to 4,000 volt
transformers, located on land described in Parcel 67, as follows:
67. Lots Six (6) and Seven (7) in Andorra Park, an Addition to the City of
Indianapolis, Xxxxxx County, Indiana, and a subdivision of part of the southeast
quarter of Section Thirty-two (32), Township Sixteen (16) North, Range Three (3)
East, the plat of which is of record Ln the Recorder's Office of Xxxxxx County,
Indiana, in Plat Book Eighteen (18) at page 126.
R.C.A. Substation. One 3,900 KVA 33,000 to 4,000 volt transformer and three
200 KVA 33,000 to 4,000 volt transformers, located on Land described in Parcel
68, as follows:
68. 9 feet off of the entire West side of Lot 68 and 26 feet off of the
entire East side of Lot 69, except that part of said lots taken for the opening
and widening of Michigan Street, all in Xxxx X. Xxxxxxxx Subdivision of Lots 21,
22, 23 in Xxxxxx and Xxxxxxxx addition to the City of Indianapolis, as per plat
thereof, recorded in Plat Book 6, page 46 in the office of the Recorder of
Xxxxxx County, Indiana.
00xx Xxxxxx Substation. One 3,900 KVA 33,000 to 4,000 volt transformer,
located on land described in Parcel 69, as follows:
69. Part of Lot 26 in Xxxxxx X. Xxxxx'x East Meridian Heights, an addition
to the City of Indianapolis, as per plat thereof, recorded in Plat Book 13, page
103 in the office of the Recorder of Xxxxxx County, Indiana, more particularly
described as follows, to-wit:
Beginning on the East line of said Lot 26 at a point 24.9 feet South of the
Northeast corner of said lot; running South on and along said East line of said
Lot 26, a distance of 45 feet to a point; thence West parallel to the North line
of said quarter quarter section 20 feet to a point; thence North parallel to the
East line of said Lot 26, 45 feet to a point; thence East parallel to the North
line of said quarter quarter section 20 feet to the place of beginning, on the
East line of said Lot 26, together with perpetual easements and rights-of-way
appertaining thereto.
INDUSTRIAL SUBSTATIONS.
Fairmount Glass Co. Substation. Three 500 KVA 33,000 volt to 4,000 volt
transformers. Substation equipment owned by the Company.
Xxxxxxx-Xxxxx Steel Co. Substation. Three 1,000 KVA 33,000 volt to 4,000
volt transformers. Substation equipment owned by the Company.
American Aggregates Co. Substation. Three 667 KVA 33,000 volt to 4,000 volt
transformers. Substation equipment owned by the Company.
Link-Belt, Dodge Plant Substation. Three 667 KVA 33,000 volt to 4,000 volt
transformers. Substation equipment owned by the Company.
Link-Belt, Belmont Plant Substation. Four 1,000 KVA 33,000 volt to 4,000
volt transformers. Substation equipment and land owned by the Company, on land
described in Parcel 70, as follows:
70. Part of Lots Twenty-five (25), Twenty-six (26) and Twenty-seven (27) in
Xxxxx'x Haughville Subdivision now a part of the City of Indianapolis, being a
subdivision of the south part of Block 15 and Xxxx 00, 00, 00, 00, 00, xxx 00 xx
Xxxxxxxx Building and Loan Association No. 2 Subdivision of Block 7 in Xxxxxx
West End Addition, the plat of Xxxxx'x Haughville Subdivision is recorded in
Plat Book 10, page 112 in the office of the Recorder of Xxxxxx County, more
particularly described as follows:
Beginning at a point on the north line of said Lot 25, 64.1 feet east of
the northwest corner of said lot; running thence south 105 feet to a point in
the south line of said lot 27, 66.32 feet east of the southwest corner of said
lot 27; running thence east on the south line of said lot 27, 37 feet to a
point; thence running north 105 feet to a point in the north line of said lot
25, 101.1 feet east of the northwest corner of said lot 25; thence west on the
north line of said lot 25, 37 feet to the place of beginning.
Electric Steel Company Substation. Three 500 KVA 33,000 volt to 4,000 volt
transformers. Substation equipment owned by the Company.
A.C. to D.C. CONVERSION SUBSTATIONS.
Substation No. 1. Three motor generators with an aggregate capacity of
3,850 KW. Also a 36,000 ampere hour storage battery. Located on land hereinafter
described as leased Parcel C.
Substation No. 2. Two motor generators with an aggregate capacity of 2,250
KW. Located on land described in Parcel 71, as follows:
71. A part of Lot Four (4) in square thirty-five (35) of the Donation Lands
of the Town, now City, of Indianapolis, described as follows: Beginning on the
east line of said Lot at a point thirty (30) feet south of the northeast corner
thereof; thence south along the said east line thirty-two (32) feet and six (6)
inches to a point; thence west parallel with the north line of said lot one
hundred and ninety-five (195) feet more or less, to an alley; thence north
thirty-two (32) feet six (6) inches to a point; thence east parallel with the
north line of said lot one hundred ninety-five (195) feet to the place of
beginning.
Substation No. 3. Two motor generators with an aggregate capacity of 2,000
KW. Also a 27,600 ampere hour storage battery. Located on land described in
Parcel 72, as follows:
72. Lot five (5) in Xxxxxx Xxxxx' Subdivision of Out Lot fifty-nine (59) in
the City of Indianapolis, according to the plat of said subdivision recorded in
Deed Record "S" at page 64 in the office of the Recorder of Xxxxxx County,
Indiana.
Substation No. 4. Two motor generators with an aggregate capacity of 2,000
KW. Also a 36,000 ampere hour storage battery. Located on land described in
Parcel 73.
73. Lot 8 in Blake's Subdivision of Square 96 in the City of Indianapolis,
as per plat thereof, recorded in Plat Book 1, pages 89 and 90 in the office of
the Recorder of Xxxxxx County, Indiana.
Substation No. 5. Contains two motor generators with an aggregate capacity
of 2,400 KW. Located within X.X. Xxxxx Plant, Section K, on land hereinbefore
described in Parcel 27.
Substation No. 6. Contains two motor generators with an aggregate capacity
of 2,200 KW. Located on land hereinafter described as leased Parcel A.
GROUP THREE--TRANSMISSION LINE SITES.
The Company owns sites for use in connection with its transmission lines,
which sites are located on lands described in Parcels 74 to 87 both inclusive,
as follows:
74. A parcel of ground in the South 1/2 of the Northwest 1/4 of Section
numbered 5 in Township 15 North, of Range 3 East of the Second Principal
Meridian, same being a portion of Lot numbered 8 in the Subdivision of said half
quarter Section aforesaid made by Commissioners of the estate of Xxxxxx
Xxxxxxxxx, deceased, the plat of which appears of record in Land Record ZZ at
page 147 thereof, in the office of the Recorder of Xxxxxx County, Indiana, such
portion of said Lot numbered Eight (8) being more particularly described as
follows:
Beginning in the center line of Michigan Street at a point distant 736.32
feet north of the south line of said Lot 8, and 235.88 feet west of the east
line of said Lot 8, thence east along and with the center line of Michigan
Street, 117.94 feet to a point; thence south 367.88 feet to a point distant
118.39 feet, west of the east line of said Lot 8; thence west, 118.39 feet, to a
point distant 368.16 feet north of the south line of said Lot 8; thence north
368.18 feet to the place of beginning, containing one acre, more or less.
75. Lot Four (4) in Emblegarde, being a Subdivision of the south half of
the Northeast Quarter of Section 14, Township 17 North, Range 3 East, in Xxxxxx
County, State of Indiana, as per plat thereof, recorded in Plat Book 15, page
176, in the Office of the Recorder of Xxxxxx County, Indiana.
76. Part of the northeast1/4of Section 23, Township 16 North, Range 4 East,
described as follows:
Beginning at a point in the north line of said quarter section 1200 links
west of the northeast corner thereof, running thence west along said north line
228 links to the center of the Indianapolis and Lanesville Free Gravel Road
known as the Xxxxxxxxx Xxxx; thence west 31 1/2 degrees south with the center
line of said Pike 109 links; thence south parallel with the east line of said
section 948 links to a point which is the southeast corner of the 4-acre tract
of land heretofore conveyed by Xxxxx X. Xxxxx to Xxxxxx X. Xxxxxxx; thence east
parallel with the north line of said section 309 links; thence north parallel
with the east line of said section 1000 links to the place of beginning,
containing 3 1/2 acres, more or less.
77. Part of the east half of the southeast 1/4 of Section 2, Township 15
North, Range 4 East, further described as follows, to-wit:
Beginning in the center of the National Road at a point 194.1 feet east,
measured in said center line from the west line of said east 1/2 of the
southeast 1/4 of Section 2, and running thence south parallel with the west line
of said half quarter section 1000.65 feet to a point on the north line of the
right of way of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway,
formerly the Indiana Central Railroad; thence east along said north line of said
right of way 156.9 feet; thence north on a line parallel with the west line of
said half quarter section 1000.50 feet to a point in said center line of said
National Road; thence west along said center line of said National Road 156.9
feet to the place of beginning, containing 3.61 acres, more or less.
78. Lot 40 in Exeter Park, being a subdivision of part of the northeast
quarter of Section 36, Township 17 North, Range 3 East, in Xxxxxx County,
Indiana, as per plat thereof, recorded in Plat Book 14, page 21 in the office of
the Recorder of Xxxxxx County, Indiana.
79. Xxx 0 xx XxXxx'x Xxxxx Xxxxxxxx Xxxxxx Addition in Xxxxxx County,
Indiana, as per plat thereof, recorded in Plat Book 16, page 125, in the office
of the Recorder of Xxxxxx County, Indiana.
80. Xxx 00 xx XxXxx'x Xxxxx Xxxxxxxx Xxxxxx Addition in Xxxxxx County,
Indiana, as per plat thereof, recorded in Plat Book 16, page 125, in the Office
of the Recorder of Xxxxxx County, Indiana.
81. Lot 7 in Emblegarde, being a Subdivision of the south half of the
northeast quarter of Section 14, Township 17 North, Range 3 East, in Xxxxxx
County, Indiana, as per plat thereof, recorded in Plat Book 15, page 176, in the
Office of the Recorder of Xxxxxx County, Indiana.
82. Lot 41 in Exeter Park, being a Subdivision of part of the North East
Quarter of Section 36, Township 17 North, Range 3 East, as per plat thereof, in
Plat Book 14, page 21.
83. Lot One (1) in Exeter Park, the plat of which appears of record in the
Office of the Recorder of Xxxxxx County, Indiana, Plat Book 14, page 21.
84. Part of the north 1/2 of the northwest 1/4 of Section 8, Township 16
North, Range 3 East, of the Second Principal Meridian in Xxxxxx County, Indiana,
described as follows: Beginning at a point on the north line of said Section
2795.2 feet west of the north east corner of said Section, thence south along
the west line of the right of way of the C.C.C. and St. L. Railway 590.8 feet to
a point, thence south 89 degrees 47' west 100 feet to a point, thence north
parallel with the west line of the C.C.C. & St. L. Railway to the North line of
said Section, thence east along the north line of said Section 100 feet to the
place of beginning.
85. Lots number One (1), Two (2), Three (3), Four (4) and Five (5) in Block
lettered Z, in Augusta Heights, First Section, the plat of which is recorded in
Plat Book 20, page 5, in the office of the Recorder of Xxxxxx County, Indiana.
86. Lots Numbered Thirteen (13) and Fourteen (14) in Block AA and Lot
Numbered Thirteen (13) in Block CC, in Augusta Park, Third Section, an Addition
to the City of Indianapolis, the plat of which is recorded in Plat Book 24, page
132, in the office of the Recorder of Xxxxxx County, Indiana.
87. A part of the Northeast Quarter of Section 8, Township 15 North, Range
3 East, more particularly described as follows, to-wit: Beginning at a stone at
the Northwest corner of the Northeast Quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 0 Xxxx; thence East along the North line of said Section 271.26 feet;
thence South parallel with the West line of the Northeast Quarter of said
Section 8, 1346.4 feet to the center of the National Road; thence
Northeastwardly along said center line Seventeen hundred thirty-nine and
seventy-six hundredths feet; thence North 52 degrees 30' West 47.69 feet to the
North line of said National Road, the initial point of beginning; running thence
North 52 degrees 30' West along the East line of said land 760 feet to the South
right-of-way line of the Indianapolis & Western Railway (Danville Division of
the T.H.I.& E. Traction Company); thence westwardly along said South
right-of-way line, 28.3 feet; thence South 52 degrees 30' East 245.2 feet;
thence South 36 degrees East 352.8 feet; thence South 7 degrees 48' East 2 feet
to the North line of the Rockville Road; thence Southeasterly along the North
line of said road 220 feet to the North line of the National Road; thence
Northeasterly along the North line of said road 9 feet to the place of
beginning, containing .80 acres more or less.
GROUP FOUR--MISCELLANEOUS PROPERTY
The Company owns buildings providing facilities for garage, general
storeroom, maintenance shops, engineering, service, meter and operating
departments, and a central heating plant, together with pole storage yard and a
Company filling station, all located on land described in Parcel 88, as follows:
88. A part of the southeast quarter of Section Ten (10) and part of the
southwest quarter of Section Eleven (11), all in Township Fifteen (15) North;
Range Three (3) East, described as follows: Beginning on the north line of
Xxxxxx Street at a point twenty-seven and three-tenths (27.3) feet east of the
southeast corner of Lot "K" in XxXxxxx'x 5th West Side Addition, and running
east with the north line of Xxxxxx Street four hundred ninety-four (494) feet to
the west line of the right of way of the Indianapolis and Vincennes Railroad
Company (such right of way was conveyed to said railroad by two certain deeds,
the one executed by Xxxxxxxx XxXxxxx et al. by deed dated September 14, 1876,
and recorded in the Recorder's Office of Xxxxxx County in Land Record 4, page
233, and the other by Xxxxx Day, Guardian, by deed dated December 23, 1876, and
recorded in the same volume at page 231); thence northeastwardly with said right
of way line sixteen hundred and sixty-seven (1667) feet to the south line of Ray
Street (formerly Xxxxxxxx Avenue); thence west with the south line of said
street four hundred ninety-four (494) feet; thence southwestwardly parallel to
said railroad sixteen hundred sixty-seven (1,667) feet to the place of
beginning; containing thirteen and eighty-five hundreds (13.85) acres, one and
one-third (11/3) acres of which are in said Section Eleven (11).
A warehouse used for storing steam heat service supplies is located on land
described in Parcel 89, as follows:
89. Sixty-five (65) feet off the entire north end of Lot Eight (8) in
Square Sixty-Six (66) in the City of Indianapolis, ten (10) feet off the entire
south end of said described portion of said Lot Eight (8) to be used with ten
(10) feet off the north end of the balance of said lot for the purpose of light
for both properties in accordance with the provisions made in the deed of
September 26, 1899, from Xxxxxx X. Xxxxxx and wife to Xxxxxxx X. Xxxxxxxx,
recorded in Town Lot Record 319, page 465, in the office of the Recorder of
Xxxxxx County, Indiana.
The Company leases to various tenants floor space in buildings on land
described in Parcels 90 and 91, as follows:
90. Lots One (1), Two (2), Three (3), Four (4) and Five (5) and also a
strip of ground ten (10) feet wide, being vacated alley north of and adjoining
said Lot Five (5) (except that part conveyed to the Pittsburgh, Cincinnati,
Chicago, and St. Louis Railroad Company, by deed dated February 16, 1926, and
recorded July 20, 1926, in Town Lot Record 769, page 419, Instrument No. 28532)
all in Xxxxxx'x Addition, being a subdivision of Lots Twenty-Nine (29), Thirty
(30), and Thirty-One (31) in Xxxxx, Xxxxxxx and Xxxxxx'x Addition to the City of
Indianapolis, as per plat thereof recorded in Plat Book 10, page 147, in the
office of the Recorder of Xxxxxx County, Indiana.
91. Lots Thirty-Two (32), Thirty-Three (33), Thirty-Four (34), Thirty-Five
(35), Thirty- Six (36), Thirty-Seven (37), Thirty-Eight (38), Thirty-Nine (39),
and Forty (40), (except fifteen (15) feet off of the south ends of said lots,
also except that part conveyed to P.C.C. & St. L.R. Co. by deed dated February
16, 1926, and recorded July 20, 1926, in Town Lot Record 769, page 419,
Instrument No. 28532) in Xxxxx, Xxxxxxx & Xxxxxx'x subdivision of out lots
Seventy-Five (75) and Seventy-Six (76) of the Donation Lands of the City of
Indianapolis, as per plat thereof recorded in Plat Book 4, page 238, in the
office of the Recorder of Xxxxxx County, Indiana.
A recreation center for use of the Company's employees is provided on land
described in Parcel 92, as follows:
92. Lots Sixteen (16) and Seventeen (17) and Eighteen (18) in Xxxx X.
Xxxxxx'x and Xxxxxxxxx Xxxxxx'x corrected sub-division of the north part of the
east half of the southwest quarter of Section 36, Township 16 North, Range 3
East, as per plat thereof recorded in Plat Book 3, page 126, in the office of
the Recorder of Xxxxxx County, Indiana.
Property formerly used but not now in use is land described in Parcels 93
and 94, as follows:
93. Lot Numbered Twenty(20) in Block Ten (10) in North Side Addition to the
City of Indianapolis, the plat of which is recorded in Plat Book 5, page 25, in
the office of the Recorder of Xxxxxx County, Indiana.
94. Lots 696 to 706, both inclusive, 788 to 800 both inclusive, 813 to 831
both inclusive, 841 to 850 both inclusive and that portion of Lots 840, 851 and
852, which was conveyed by The Xxxxxxxxx Paper Company to Terre Haute,
Indianapolis and Eastern Traction Company by deed dated July 13, 1910 and
recorded July 18, 1910 in Town Lot Record 464 page 20, all in Stouts Tenth
Street Addition, now in the City of Indianapolis, as per plat thereof, recorded
in Plat Book 12, page 52, in the office of the Recorder of Xxxxxx County,
Indiana.
Also, the 12 foot alley heretofore vacated and lying between Lots 696 to
705 and Lots 788, 823 and 849; also a strip of ground of the uniform width of 25
feet lying north of and adjacent to the north side of Lot 800, being the south
half of 00xx Xxxxxx heretofore vacated;
Also all that part of Cable Street, heretofore vacated lying between Lots
703, 788 to 799 inclusive and Lots 702 and 813 to 823 inclusive;
Also a strip of ground of the uniform width of 25 feet lying east of and
adjacent to the east end of Lot 800 being a part of the west half of Cable
Street, heretofore vacated; all of Xxxxxx Street, heretofore vacated; also all
the 12 foot alley heretofore vacated lying between Lots 813 to 823 inclusive,
and Lots 849, 824 to 831 both inclusive; also all of Minkner Street heretofore
vacated lying between Lots 824 to 831 inclusive and Lots 841 to 848 inclusive;
also, all the 12 foot alley heretofore vacated lying between Lots 841 to 848
inclusive and Lot 850; also a strip of ground of the uniform width of 7 1/2 feet
lying north of and adjacent to the north sides of Lots 813, 831, 841 and 850,
being the south half of an alley heretofore vacated; Also, a part of the north
half of the last above described vacated alley being 7 1/2 feet, lying south of
all of Lot 851 and that portion of Lot 840 conveyed to Terre Haute, Indianapolis
and Eastern Traction Company in Town Lot Record 464 page 20 as set out above.
PART II.
COAL PROPERTY IN THE COUNTY OF XXXXXXXX, STATE OF INDIANA.
All the right, title and interest of the Company in and to the coal and
other minerals in and underlying the following described parcels or tracts of
land situate in the County of Xxxxxxxx in the State of Indiana, together with
all buildings, structures, improvements, machinery, and equipment of every
description now or hereafter affixed thereto or stationed thereon or
appertaining thereto, to wit:
All the coal and other minerals in and underlying the following described
pieces, parcels or tracts of land lying and being in the County of Xxxxxxxx,
State of Indiana, to-wit:
The northwest quarter of the northwest quarter of Section Eight (8); the
northeast quarter of the northwest quarter of Section Eight (8); the south half
of the northwest quarter of Section Eight (8); the northeast quarter of Section
Eight (8); the north half of the southeast quarter of Section Eight (8); also
beginning at the northeast corner of the southwest quarter of Section Eight (8)
and running thence west thirty-nine (39) chains ninety-two (92) links; thence
south nine (9) chains fifty (50) links; thence east thirty-nine (39) chains
ninety-two (92) links; thence north nine (9) chains and fifty (50) links to the
place of beginning; all in Township Eight (8) North, Range Eight (8) West. Also
the southeast quarter of the southwest quarter of Section Five (5) also the
southwest quarter of the southeast quarter of Section Five (5); all in Township
Eight (8) North, Range Eight (8) West. Also the northeast quarter of Section
Seven (7); the northwest quarter of the southeast quarter of Section Seven (7);
the southeast quarter of the northwest quarter of Section Seven (7); twelve (12)
acres off of the east side of the east half of the southwest quarter of the
northwest quarter of Section Seven (7); the northeast quarter of the northwest
quarter of Section Seven (7), except a tract in the northwest corner thereof
forty (40) rods east and west and forty-eight (48) rods north and south; all in
Township Eight (8) North, Range Eight (8) West; together with the rights to mine
and remove said coal and minerals, and the coal and minerals of adjacent lands,
and the right of ingress and egress through and over said lands for that
purpose, and the right or option to purchase certain portions of the surface of
said lands as may be necessary for the construction, location and maintenance of
coal mines, tipple, tracks, and buildings necessary for the operation of coal
mines, and for such railroad and switches as may be necessary to connect said
mines with the main line or main switch of any railroad; all as described and
expressed in a certain deed bearing date the 19th date of February, 1903,
executed by the Xxxxxx Coal Company to Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx and
recorded in the office of the Recorder of Xxxxxxxx County, Indiana, in Deed
Record 83, on page 390.
PART III.
COAL PROPERTY IN THE COUNTY OF PIKE, STATE OF INDIANA.
All the right, title and interest of the Company in and to the coal and
other minerals in and underlying the following described parcels or tracts of
land situate in the County of Pike in the State of Indiana, together with all
buildings, structures, improvements, machinery, and equipment of every
description now or hereafter affixed thereto or stationed thereon or
appertaining thereto, to wit:
All the coal situated, lying and being in and constituting a part of
following described real estate in Pike County, in the State of Indiana, to wit:
The southeast quarter of the southwest quarter of the southwest quarter of
Section Three (3), Township One (1) South, Range Nine (9) West, and also two (2)
acres in the southeast quarter of the southwest quarter of said Section Three
(3) bounded as follows: Commencing at the southwest corner of said quarter
quarter section and running thence north forty (40) rods, thence east eight (8)
rods, thence south forty (40) rods, thence west eight (8) rods to the place of
beginning.
Also, the southwest quarter and the west half of the southeast quarter of
Section Ten (10), Township One (1) South, Range Nine (9) West, except
three-quarters (3/4) acre in the southeast corner of the west half of the
southeast quarter of said Section Ten (10);
Also, the west half of the southwest quarter of the northwest quarter of
said Section Ten (10); the west half of the northeast quarter of the northwest
quarter of said Section Ten (10); the northeast quarter of the northeast quarter
of the northwest quarter of said Section Ten (10); and a part of the northwest
quarter of the northeast quarter of said Section Ten (10), described as follows:
Commencing at the northwest corner of said quarter quarter section, running
thence south forty (40) rods; thence east thirty (30) rods, thence north forty
(40) rods, thence west thirty (30) rods to the place of beginning; also, a part
of the northwest quarter of the northwest quarter of said Section Ten (10),
described as follows: Beginning at the southeast corner of said quarter quarter
section, running thence north eighty (80) rods, thence west six (6) rods, thence
south forty (40) rods, thence west thirty-eight (38) rods, thence south forty
(40) rods; thence east forty-four (44) rods to the place of beginning, all in
Township One (1) South, Range Nine (9) West;
Also, thirty-five (35) acres in the northwest quarter of the southwest
quarter of Section Fourteen (14), Township One (1) South, Range Nine (9) West,
described as follows: Commencing at the northwest corner of said quarter quarter
section, running thence east seventy (70) rods, thence south eighty (80) rods,
thence west seventy (70) rods, thence north eighty (80) rods to the place of
beginning;
Also, all of Section Fifteen (15), Township One (1) South, Range Nine (9)
West, excepting the north half of the northeast quarter of the northeast quarter
thereof; and excepting also one and one-half (1 1/2) acres in the southwest
corner of the northwest quarter of the northeast quarter of said Section Fifteen
(15), described as follows: Beginning at the southwest corner of the northwest
quarter of the northeast quarter of said Section Fifteen (15), running thence
east sixteen (16) rods, thence north fifteen (15) rods, thence west sixteen (16)
rods, thence south fifteen (15) rods to the place of beginning; and excepting,
also a part of the southwest quarter of the southwest quarter of said Section
Fifteen (15) described as follows: Commencing forty (40) rods east of the
southwest corner of said quarter quarter section, running thence north forty
(40) rods, thence east eight (8) rods, thence south forty (40) rods, thence west
eight (8) rods to the place of beginning, said exception containing two (2)
acres, more or less;
Also, all of Section Twenty-two (22), Township One (1) South, Range Nine
(9) West, excepting sixteen (16) acres in the southwest corner thereof occupied
by the Village of Oatsville, and excepting two (2) acres, more or less, in the
southwest corner of the southeast quarter of the northeast quarter of said
Section Twenty-two (22), described as follows: Commencing at the southwest
corner of the southeast quarter of the northeast quarter of said Section
Twenty-two (22), thence north twenty-five (25) rods, five and one-half (5 1/2)
feet, thence east thirteen (13) rods, thirteen and one-half (13 1/2) feet;
thence south twelve (12) rods, three and one-half (3 1/2) feet, thence west to a
point ten (10) rods, fourteen and one-half (14 1/2) feet, more or less, east of
the west line of the southeast quarter of the northeast quarter of said section
twenty-two (22), thence south thirteen (13) rods, two (2) feet, more or less, to
the south line of the northeast quarter of said section twenty- two (22), thence
west ten (10) rods, fourteen and one-half (14 1/2) feet, more or less, to the
place of beginning;
Also, a part of the northwest quarter of the northwest quarter of Section
Twenty-Three (23), Township One (1) South, Range Nine (9) West, described as
follows: Beginning at the northwest corner of said quarter quarter section,
running thence east forty-eight (48) rods, thence south eighty (80) rods, thence
west forty-eight (48) rods, thence north eighty (80) rods to the place of
beginning, containing twenty-four (24) acres, more or less.
Also, the north half of the northwest quarter of Section Twenty-Seven (27),
Township One (1) South, Range Nine (9) West, excepting the tract described as
follows: Beginning six (6) rods east of the northwest corner of the said north
half of the northwest quarter of said Section Twenty-Seven (27), running thence
east to the southeast corner of Lot Four (4) in Oatsville, thence south one
hundred fifty-five (155) feet, thence west to a point six (6) rods east of the
west line of said quarter section, thence north one hundred fifty-five (155)
feet to the place of beginning, and excepting also, the following described
tract, to-wit: Beginning at a point two hundred sixty-seven (267) feet east of
the northwest corner of said quarter section, running thence south one hundred
forty (140) feet; thence east one hundred (100) feet, thence north one hundred
forty (140) feet, thence west one hundred (100) feet to the place of beginning,
and excepting also, the following described tract, to- wit: Beginning thirteen
(13) rods, nine and one-half (9 1/2) feet east of the northwest corner of said
quarter section, thence south one hundred fifty (150) feet, thence east fifty
(50) feet, thence north one hundred fifty (150) feet, thence west fifty (50)
feet to the place of beginning.
Together with the right to mine and remove the same and for the purpose of
determining the presence and value of such coal, the right in said Indianapolis
Power & Light Company, its successors and assigns, to enter upon said premises
with such machinery and appliances as may be necessary for the purpose of
exploring and testing same by drilling or otherwise;
Also the following rights, privileges, franchises and easements, to-wit:
The right to enter upon such lands and sink such shafts for hoisting coal,
supply of air, discharge of water or escape as may be necessary for the best
operation of a coal mine; also the right to the use of so much of the surface of
said land as may be required for the location and construction of tipples and
appurtenant buildings and the deposit and storage of refuse and other materials;
also the right to locate, construct and operate a railroad switch, track or
tracks, over or across such premises, together with a right of way and easement
for same;
Also the right of way and easement for a practical wagon road and the use
of the same to and from such mine and its appurtenances; also the easement and
right to convey away, over and across said premises, in the natural courses of
drainage, any water that may be produced by the process of mining and removing
the underlying coal;
Also the right and easement that the said Indianapolis Power & Light
Company, its successors and assigns, are, under no circumstances, to be held
responsible for any damage that may accrue to the surface of said land from
subsidence, or otherwise, by reason of the mining and removing of the coal
underlying the same;
Also, all the right, title and interest of Pike County Coal Corporation in
and to the real estate hereinabove described, and all the title, interests,
rights, easements, privileges, rights of way and franchises of said Pike County
Coal Corporation in, upon, under and appurtenant to said real estate, and
including all the rights, privileges, easements, rights of way, licenses and
franchises of said Pike County Coal Corporation in, and upon the surface of said
real estate.
Also, a perpetual right of way and easement for a railroad switch, track or
tracks, from the lands hereinabove described eastwardly towards the lines and
tracks of the New York Central Railroad Company, sometimes known as the lines
and tracks of the Evansville, Indianapolis and Terre Haute Railroad Company, for
the proper and convenient operation of a coal mine or mines in or on the real
estate hereinbefore described, upon, over and across the following described
real estate in said Pike County, to-wit:
The south half (1/2) of the northwest quarter (1/4); the west half (1/2) of
the northeast quarter (1/4); the northeast quarter (1/4) of the northeast
quarter (1/4); the west half (1/2) of the southeast quarter (1/4);
A part of the northeast quarter (1/4) of the southeast quarter (1/4),
described as follows: Commencing at the southeast corner of said quarter (1/4)
quarter (1/4) section, running west eighty (80) rods; thence north sixty (60)
rods; thence east eighty (80) rods; thence south sixty (60) rods to the place of
beginning;
A part of the northeast quarter (1/4) of the southwest quarter (1/4),
described as follows: Commencing at the center of said Section Twenty-Seven
(27), running thence west eighty (80) rods; thence south sixty (60) rods; thence
east eighty (80) rods; thence north sixty (60) rods to the place of beginning;
Also, eighteen (18) acres in the form of a parallelogram taken off the
north side of the northwest quarter (1/4) of the southwest quarter (1/4), all in
Section Twenty-Seven (27), Township One (1) South, Range Nine (9) West, together
with the right, privilege and authority in and to said Indianapolis Power &
Light Company, its grantees, successors and assigns, to construct, reconstruct,
repair, operate, maintain and remove such railway switch track or tracks, and
all necessary culverts, bridges, grades, fills and cuts and all necessary
abutments, piers, structures, towers, poles, signals, wires, cables, telephone
and/or telegraph or other communication systems, plants, devices, equipment and
appliances, and all other appliances or fixtures for the proper operation and
maintenance of such railway switch track or tracks;
Also, the right and easement to connect with and use any railroad track or
switch that may be constructed or acquired by any subsequent purchaser or
purchasers from said Receiver of any remaining part or parts of the coal lands
of said Pike County Coal Corporation not conveyed by said Receiver to said
Indianapolis Power & Light Company from, upon and across any part of said
Section 27, outward to the main line of any railroad common carrier, subject to
and conditioned upon an agreement for an equitable distribution of the cost of
maintenance and operation of such switch or track, including an equitable
allocation of the capital cost.
PART IV.
LEASEHOLDS.
The following described leases with respect to the following described
parcels or tracts of land situate in the County of Xxxxxx in the State of
Indiana, together with all the right, title, and interest of the Company, now
owned or hereafter acquired, in and to any and all of said parcels and tracts of
land and all the buildings, structures, improvements, machinery and equipment of
every description now or hereafter stationed thereon, affixed thereto, or in any
way appertaining thereto, to-wit:
LEASED PARCEL A.
Substation No. 6.
That certain lease dated August 29, 1919, between Xxxxxx X. Xxxxx (his wife
Xxxxxx X. Xxxxx joining) as lessor and Indianapolis Light and Heat Company as
lessee, recorded September 5, 1919, in Miscellaneous Record 107 at page 375 in
the Recorder's Office of Xxxxxx County, Indiana, whereby the lessor demised to
the lessee, its successors and assigns, for a period of ninety- nine years from
August 29, 1919, the following described property:
A part of the Northeast Half of Square One Hundred and One (101) in
the City of Indianapolis, described as follows:
Beginning on the east line of said Square at a point 205 feet 2 1/2
inches south of the northeast corner thereof and running north with the
east line of said Square and the west line of Xxxx Xxxxxx 00 feet; thence
west 108.7 feet; thence south 45 degrees west at right angles to Virginia
Avenue 53.9 feet to Virginia Avenue; thence south 45 degrees east along
Virginia Avenue 36.1 feet; thence north 45 degrees east 48 feet; thence
eastwardly 87 feet 8 inches to the place of beginning.
LEASED PARCEL C.
Former Office Building and Substation No. 1.
That certain lease dated September 30, 1922, between Xxxxxxx X. Xxxxx and
wife and Xxxxxxxxx X. Xxxxxx, as lessors, and Indianapolis Light and Heat
Company, as lessee, recorded October 25, 1924, in Miscellaneous Record 153 at
page 270 in the Recorder's office of Xxxxxx County, Indiana, whereby the lessors
demised to the lessee, its successors and assigns, for a period of ninety-nine
years from October 1, 1922, the following described property:
The northwest one-half (1/2) of Lot Thirteen (13) in Square Fifty-Five
(55) in the City of Indianapolis, said premises being known as numbers
forty-six (46) and forty-eight (48) on Monument Circle.
LEASED PARCEL D.
Coal Storage--X.X. Xxxxx Plant, Section W.
That certain lease dated May 6, 1936, between Indianapolis Water Company,
lessor, and Indianapolis Power & Light Company, lessee, for a term of five years
beginning May 1, 1936, covering the two certain tracts of land in Xxxxxx County,
Indiana, particularly described as follows, viz:
TRACT NO. 1
Beginning on the south line of Market Street in the City of
Indianapolis, at its intersection with the east line of Geisendorf Street,
thence southwardly with said east line of Geisendorf Street, making an
interior angle of 87 degrees 46' with said south line of Market Street Two
Hundred Fourteen and Forty-five Hundredths (214.45) feet to the north line
of Washington Avenue, thence eastwardly with the said north line of
Washington Avenue, making an interior angle of 100 degrees 04' Sixty-seven
and Sixty-two Hundredths (67.62) feet to the west property line of the
Merchants Heat and Light Company, thence north with said property line,
making an interior angle of 82 degrees 10' with said north line of
Washington Avenue, Two Hundred Twenty-three and Thirty Hundredths (223.30)
feet to the south line of Market Street, thence west at right angles to
said property line, 75.38 feet to the place of beginning, containing 15,555
square feet.
TRACT NO. 2
Beginning at the northeast corner of Market and Geisendorf Streets in
the City of Indianapolis, Xxxxxx County, Indiana; thence south 85 degrees
35' east, two hundred thirty-two and two hundredths (232.02) feet to a
point seven (7) feet west of the center line of the Cleveland, Cincinnati,
Chicago and St. Louis Railway Company's switch track lying west of the
forebay; thence north 2 degrees 02' 30" west, ninety and seventy-seven
hundredths (90.77) feet to a point seven (7) feet west of the center line
of said switch; thence north 3 degrees 53' west fifty and thirteen
hundredths (50.13) feet to a point seven (7) feet west of the center line
of said switch; thence north 10 degrees 08' west, fifty (50) feet to a
point seven (7) feet west of the center line of said switch; thence north
19 degrees 15' west forty-four and fifty hundredths (44.50) feet to a point
seven (7) feet west of the center line of said switch; thence north 88
degrees 56' west one hundred ninety-one and ten hundredths (191.10) feet to
the east line of Geisendorf Street; thence south 2 degrees 32 1/2' west
with the said east line of Geisendorf Street to the place of beginning.
Also that tract of land lying north of and adjacent to the above
described tract of land, bounded on the north and east by a line seven (7)
feet southwestwardly from and parallel with the center line of the above
mentioned switch track, and the center line of the "Horn Switch", so
called, to a point in the east line of Geisendorf Street, bounded on the
west by the east line of Geisendorf Street, and on the south by the north
line of the first described tract.
LEASED PARCEL E.
Coal Supply Switch.
That certain lease dated May 1, 1936, between Indianapolis Water Company,
lessor, and Indianapolis Power & Light Company, lessee, for a term of five years
beginning May 1, 1936, covering railroad track or switch serving lessee's X.X.
Xxxxx Plant, Section W.
LEASED PARCEL F.
Present Office Building.
That certain sublease dated February 19, 1936, from Electric Building
Company, Inc. to Indianapolis Power & Light Company, recorded February 29, 1936,
in Miscellaneous Record 268, page 310, in the Recorder's office of Xxxxxx
County, Indiana, whereby said Electric Building Company, Inc., sublet to said
Indianapolis Power & Light Company, for a term of twenty years from September 1,
1935, portions of the building known as the Electric Building, being situated on
the southeast corner of Meridian Street and Monument Place, being 00 Xxxxx
Xxxxxxxx xxxxxx, on the following described property:
Lot Fourteen (14) in Square Fifty-six (56) of the Donation Lands of
the Town, now City, of Indianapolis.
PART V.
Electric Distributing Systems.
All of the electric distributing systems now owned by the Company and
located in the City of Indianapolis and elsewhere in the County of Xxxxxx, State
of Indiana, and also in the Counties of Boone, Hamilton, Hancock, Hendricks, and
Xxxxxxx, State of Indiana; and also any and all other electric distributing
systems now owned or which may hereafter be constructed or acquired by the
Company, wheresoever situated, and any additions to or extensions of any such
present or future plants and systems, together with the buildings, erections,
structures, transmission lines, power stations, sub-stations, engines, boilers,
condensers, pumps, turbines, machinery, tools, conduits, manholes, insulators,
dynamos, motors, lamps, cables, wires, poles, towers, cross-arms, piers,
abutments, switchboard equipment, meters, appliances, instruments, apparatus,
appurtenances, maps, records, ledgers, easements, contracts, permits, facilities
and other property or equipment used or provided for use in connection with the
construction, maintenance, repair and operation thereof, both that now owned and
that which may hereafter be acquired by the Company; together also with all of
the rights, privileges, rights-of-way, franchises, licenses, grants, liberties,
immunities, ordinances, permits, and easements of the Company in respect of the
construction, maintenance, repair and operation of said plants and systems now
owned or hereafter constructed or acquired; and including, without limitation of
the foregoing, the 132,000 volt electric transmission line approximately 46.9
tower miles or 55.9 circuit miles, on steel towers, forming a loop circuit
completely surrounding the City of Indianapolis; also four 33,000 volt power
loops, one in each quadrant of the City of Indianapolis, aggregating
approximately 94 wood pole miles or 98.2 circuit miles; also the entire 4,000
volt and lower distribution system consisting of approximately 1,967 wood pole
miles or 2,844 circuit miles of overhead lines; also the entire street lighting
equipment and underground A.C. and D.C. system.
PART VI.
STEAM AND HOT WATER DISTRIBUTING SYSTEMS.
All the steam and hot water distributing systems now owned by the Company
and located in the City of Indianapolis, Xxxxxx County, Indiana, and also any
and all other steam or hot water distributing systems hereafter constructed or
acquired by the Company, wheresoever situated, and any additions to or
extensions of such present or future systems; together with the building,
erections, structures, boilers, heaters, engines, tanks, pipe lines, mains,
connections, service pipes, meters, tools, instruments, appliances, apparatus,
facilities, machinery and other property and equipment used or provided for use
in the construction, maintenance, repair and operation thereof, both that now
owned and that which may hereafter be acquired by the Company; and together also
with all of the rights, privileges, rights-of-way, franchises, licenses, grants,
liberties, immunities, ordinances, permits and easements of the Company in
respect of the construction, maintenance, repair and operation of said plants
and systems now owned or hereafter conferred or acquired; and including without
limitation of the foregoing the certain hot water heating system acquired from
Merchants Heat and Light Company, the certain steam heating distribution system
acquired from Merchants Heat and Light Company, and the certain steam heating
distribution system acquired from Indianapolis Light and Heat Company, all
located in the City of Indianapolis, Xxxxxx County, Indiana.
PART VII.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and other
authorizations by or from any state, county, municipality, or other governmental
authority, now owned or possessed by the Company or hereafter granted to,
conferred upon, or acquired by it, including particularly, but not limited to,
its indeterminate permit under the Public Service Commission Act of the State of
Indiana, and all Acts amendatory thereof and supplemental thereto.
Whenever any reference is hereinabove made to any deed or deeds, conveyance
or conveyances, or other documents, such reference shall in no way be in
limitation of the properties granted or mortgaged herein but shall be deemed to
have been inserted to aid in identifying the premises therein mentioned and
described.
All other property, whether real, personal or mixed (except any hereinafter
expressly excepted), and whether now owned or hereafter acquired by the Company
and wheresoever situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing or of any
general description contained in this Indenture) all lands, flowage rights,
water rights, flumes, raceways, dams, rights of way and roads; all plants for
the generation of electricity by water, steam and/or other power, power houses,
telephone systems, water systems, steam heat and power plants, hot water plants,
substations, transmission lines, distribution systems, bridges, culverts and
tracks; all offices, buildings and structures, and the equipment thereof; all
machinery, engines, boilers, dynamos, machines, regulators, meters,
transformers, generators and motors; all appliances whether electrical, gas or
mechanical, conduits, cables and lines; all pipes whether for water, steam heat
and power, or other purposes; all mains and pipes, service pipes, fittings,
valves and connections, poles, wires, tools, implements, apparatus, furniture
and chattels; all municipal franchises, indeterminate permits, and other
permits; all lines for the transportation, transmission and/or distribution of
electric current, steam heat and power or water for any purpose, including
towers, poles, wires, cables, pipes, conduits and all apparatus for use in
connection therewith; all real estate, lands, leases, leaseholds; all contracts,
whether heat, light, power, water or street lighting contracts; all easements,
servitudes, licenses, permits, rights, powers, franchises, privileges, rights of
way and other rights in or relating to real estate or the occupancy of the same
and (except as hereinafter expressly excepted) all the right, title and interest
of the Company in and to all other property of any kind or nature appertaining
to and/or used and/or occupied and/or enjoyed in connection with any property
hereinbefore described or referred to;
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 64 hereof, hereinafter contained), the
tolls, rents, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and to
the aforesaid property, indeterminate permits and franchises and every part and
parcel thereof;
IT IS HEREBY AGREED by the Company that all the property, rights,
indeterminate permits and franchises acquired by the Company after the date
hereof (except any hereinbefore or hereinafter expressly excepted) shall be as
fully embraced within the lien hereof as if such property, rights, indeterminate
permits and franchises were now owned by the Company and were specifically
described herein and conveyed hereby;
Provided that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this Indenture, viz.: (1) cash, shares
of stock and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered hereunder or
hereinafter covenanted so to be; and (2) the land and buildings located at 00-00
Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx; also a tract of land (and the
buildings thereon), containing 28.04 acres more or less, being a part of the
west half of the northwest quarter of Section 2, Township 16 North, Range 4
East, and used as a site for radio station W.F.B.M. and (3) any goods, wares,
merchandise, equipment, materials or supplies acquired for the purpose of sale
or resale in the usual course of business or for consumption in the operation of
any properties of the Company; construction equipment acquired for temporary
use; vehicles and automobiles; and (4) all judgments, accounts and
choses-in-action, the proceeds of which the Company is not obligated as
hereinafter provided to deposit with the Trustee hereunder; provided, however,
that the property and rights expressly excepted from the lien and operation of
this Indenture in the foregoing subdivisions (3) and (4) shall (to the extent
permitted by law) cease to be so excepted in the event that the Trustee or a
receiver or trustee shall enter upon and take possession of the mortgaged and
pledged property by reason of the occurrence of a completed default as defined
in said Article XIV;
TO HAVE AND TO HOLD all such properties, real, personal and mixed granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by the Company as aforesaid, or intended so to be, unto
the Trustee and its successors and assigns forever;
Subject, however, as to all property embraced herein to all of the
restrictions, exceptions and reservations of easements, rights of way or
otherwise, contained in any and all deeds and/or other conveyances under or
through which the Company acquired or shall acquire and/or claims or shall claim
title thereto, and to the restrictions, exceptions, reservations and provisions
herein specifically set forth; and
Subject further to excepted encumbrances, as defined in Section 6 hereof,
and as to any property hereafter acquired by the Company to any mortgages or
other liens which may exist thereon at the date of acquisition, including any
purchase money mortgage or lien upon such property created by the Company at the
time of acquisition of such property;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for the
benefit and security of those who shall hold the bonds and coupons issued and to
be issued hereunder, or any of them, in accordance with the terms of this
Indenture without preference, priority or distinction as to lien of any of said
bonds and coupons over any others thereof by reason of priority in the time of
the issue or negotiation or in the date of maturity thereof, or otherwise
howsoever, subject, however, to the provisions in reference to extended,
transferred or pledged coupons and claims for interest hereinafter set forth; it
being intended that the lien and security of all of said bonds and coupons of
all series issued or to be issued hereunder shall take effect from the execution
and delivery of this Indenture, and that the lien and security of this Indenture
shall take effect from the date of execution and delivery hereof as though all
of the said bonds of all series were actually authenticated and delivered and
issued upon such date;
PROVIDED, HOWEVER, and these presents are upon the condition that if the
Company, its successors or assigns, shall pay or cause to be paid, the principal
of and interest on the bonds, together with the premium, if any, payable on such
of said bonds as may have been called for redemption prior to maturity, or shall
provide, as permitted hereby, for the payment thereof by depositing with the
Trustee the entire amount due or to become due thereon for principal, interest
and premium, if any, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by it, then this Indenture and the estate and
rights hereby granted shall cease, determine and be void, otherwise to be and
remain in full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the parties
hereto, that all such bonds and coupons are to be authenticated, delivered and
issued and that all property subject or to become subject hereto is to be held
subject to the further covenants, conditions, uses and trusts hereinafter set
forth, and the Company, for itself and. its successors and assigns, does hereby
covenant and agree to and with the Trustee and its successor or successors in
such trust, for the benefit of those who shall hold said bonds and interest
coupons, or any of them, as follows:
ARTICLE I.
DEFINITIONS.
SECTION 1. The terms specified in the next succeeding six Sections hereof,
numbered from 2 to 7, both inclusive, shall, for all purposes of this Indenture,
and of any indenture supplemental hereto, have the meanings in such Sections
specified.
SECTION 2. The term "the Company" shall mean the party of the first part
hereto, INDIANAPOLIS POWER & LIGHT COMPANY, and subject to the provisions of
Article XVII hereof, shall also include its successors and assigns.
The term "the Trustee" shall mean the party of the second part hereto,
American National Bank and Trust Company of Chicago, and, subject to the
provisions of Article XVIII hereof, shall also include its successors and
assigns.
The term "this Indenture" shall mean this instrument of mortgage and deed
of trust, either as originally executed or as the same may from time to time be
supplemented, modified, altered or amended by any supplemental indenture entered
into pursuant to the provisions hereof.
The terms "the lien hereof" and the "the lien of this Indenture" shall mean
the lien created by these presents (including the after-acquired property
clauses hereof) and the lien created by any subsequent conveyance or delivery to
or pledge with the Trustee hereunder (whether made by the Company or any other
corporation or any individual or copartnership) effectively constituting any
property a part of the security held by the Trustee upon the terms and trusts
and subject to the covenants, conditions and uses specified in this Indenture.
The term "the mortgaged and pledged property" shall mean as of any
particular time the property which at said time is covered or intended to be
covered by the lien of this Indenture whether such lien be created by these
presents (including the after-acquired property clauses hereof) or by subsequent
conveyance or delivery to or pledge with the Trustee hereunder or otherwise;
property of the character described in clauses (3) and (4) of the proviso in the
granting clauses of this Indenture which expressly excepts certain property from
the lien and operation of this Indenture shall not be deemed to be included in
the term "mortgaged and pledged property," unless and until and then only so
long as such excepted property shall cease to be so excepted as set forth in
said proviso.
The term "outstanding", subject to the provisions of the next succeeding
paragraph hereof, shall mean as of any particular time with respect to bonds
issued or issuable under this Indenture all bonds which theretofore shall have
been authenticated and delivered by the Trustee under this Indenture, except (a)
bonds theretofore paid, retired, redeemed or canceled and/or for the purchase,
payment and/or redemption of which moneys in the necessary amount shall have
been deposited with or shall then be held by the Trustee with irrevocable
direction so to apply the same, (b) bonds deposited with or held in pledge by
the Trustee under any of the provisions of this Indenture, and (c) bonds
authenticated and delivered hereunder, upon transfer of which or in exchange or
substitution for and/or in lieu of which other bonds have been authenticated and
delivered under any of the provisions of this Indenture.
For the purposes of Sections 46, 72, 76, 77, 87, 98, 112, 113, 115, 119,
and 124 hereof, in determining whether the holders of the required percentage of
the principal amount of bonds have concurred in any direction, request, consent
or other action, or in determining a quorum under Section 123, bonds owned by
the Company or by any other obligor on the bonds, or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or such obligor, shall be disregarded, except that for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, request, consent or other action, only bonds which the
Trustee knows are so owned, shall be so disregarded. Bonds so owned which have
been pledged in good faith may be regarded as outstanding for the purposes of
this paragraph, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such bonds and that the pledgee is not a
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the bonds. In
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
The term "daily newspaper" shall mean a newspaper customarily published at
least six days a week.
SECTION 3. The term "resolution" shall mean a resolution certified under
the corporate seal of the Company by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors of the Company.
The term "engineer" shall mean an individual (who may be an employee of the
Company) or a co-partnership or a corporation, engaged in an engineering
business, appointed by the Board of Directors or Executive Committee of the
Company and satisfactory to the Trustee.
The term "independent engineer" shall mean an engineer, who is not
regularly in the employ of the Company or of an affiliate thereof, selected by
the Trustee in the exercise of reasonable care and approved by the Board of
Directors or Executive Committee of the Company.
The term "Treasurer's certificate" shall mean a certificate signed and
verified by the President or a Vice-President and the Treasurer or an Assistant
Treasurer of the Company. Each such certificate shall include the statements
required by Section 21 hereof.
The term "engineer's certificate" shall mean a certificate signed and
verified by the President or a Vice-President or the Treasurer of the Company
and by an engineer. Each such certificate shall include the statements required
by Section 21 hereof.
The term "independent engineer's certificate" shall mean a certificate
signed and verified by an independent engineer. Each such certificate shall
include the statements required by Section 21 hereof.
The term "opinion of counsel" shall mean an opinion in writing signed by
counsel (who may be of counsel to the Company) appointed by the Board of
Directors or Executive Committee of the Company and satisfactory to the Trustee.
Each such opinion shall include the statements required by Section 21 hereof.
The term "independent", when applied to any accountant, engineer, appraiser
or other expert, shall mean such a person who (a) is in fact independent; (b)
does not have any substantial interest, direct or indirect, in the Company or in
any other obligor upon the bonds issued hereunder or in any person directly or
indirectly controlling, or controlled by, or under direct or indirect common
control with, the Company or any such other obligor; and (c) is not connected
with the Company or any other obligor upon the bonds issued hereunder or any
person directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor, as an
officer, employee, trustee, partner, director, or person performing similar
functions.
The term "control" shall mean the power to direct the management and
policies of a person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise, and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
The term "person" shall have the meaning assigned to such term in the
Securities Act of 1933, as approved May 27, 1933 and amended June 6, 1934.
The term "affiliate" shall mean a person controlling, controlled by, or
under common control with, another person.
The acceptance by the Trustee of a certificate, opinion or appraisal shall
be sufficient evidence of its appointment, selection or approval of the signer
or signers within the meaning of this Indenture.
SECTION 4. (I) The term "property additions" shall mean plants, lines,
pipes, mains, cables, machinery, transmission lines, pipe lines, distribution
systems, service systems and supply systems, property, real or personal, and
improvements, extensions or additions, located within the State of Indiana, or
located in any other State if such property is physically connected with any
property of the Company located in Indiana by or through other property of the
Company, acquired by purchase, consolidation, merger, donation or in any other
way whatsoever, subsequent to April 30, 1940, or made or constructed subsequent
to April 30, 1940, or in the process of construction or erection in so far as
actually constructed or erected subsequent to April 30, 1940, and used or useful
or to be used in the business of generating, manufacturing, transporting,
transmitting, distributing or supplying electricity for light, heat, power or
other purposes, or steam for power, heat or other purposes. Without enlarging
the definition of property additions above set forth or the purposes for which
such property shall be used or useful, the term "property additions" shall not,
however, include (1) any shares of stock or obligations (including bonds, notes
and other securities), or (2) any radio broadcasting property or facilities or
any mining properties or any leasehold estates or any improvements, extensions
or additions upon any property of the character described in this clause (2), or
(3) except as herein otherwise specifically provided, going value, good will,
franchises or governmental permits granted to or acquired by the Company, as
such, separate and distinct from the property operated thereunder or in
connection therewith or incident thereto, or (4) any goods, wares, merchandise,
equipment, materials or supplies acquired for the purpose of sale or resale in
the usual course of business or for consumption in the operation of any
properties of the Company, or construction equipment acquired for temporary use,
or vehicles or automobiles, or judgments, accounts or choses-in-action, or (5)
any property the cost of acquiring, making or constructing which is chargeable
under accepted principles of accounting to operating expenses, or (6) any
property now or hereafter owned by any corporation of which the Company on May
1, 1940 owned more than fifty per centum (50%) of its outstanding stock.
Any property (other than property of the character described in clauses (1)
to (4) inclusive of the proviso in the granting clauses of this Indenture which
expressly excepts certain property from the lien and operation of this Indenture
and other than any property the cost of acquiring, making or constructing which
is chargeable under accepted principles of accounting to operating expenses)
acquired by the Company subsequent to April 30, 1940, or made or constructed
subsequent to April 30, 1940, or in the process of construction or erection in
so far as actually constructed or erected subsequent to April 30, 1940, may,
however, be deemed to be and treated as property additions for the following
limited purposes:
(i) as a basis for the release from the lien of this Indenture of (x)
any property owned by the Company on April 30, 1940 which is of such
character as would not have been included within the term "property
additions" (as hereinabove defined in the preceding paragraph of this
Section 4) if it had been acquired or made or constructed subsequent to
April 30, 1940, or (y) any property acquired or made or constructed
subsequent to April 30, 1940 which is of such character as not to be
included within the term "property additions" (as hereinabove defined in
the preceding paragraph of this Section 4); property of the character
described in subdivisions (x) and (y) of this clause (i) being hereinafter
in this paragraph referred to as "unfundable property";
(ii) as a basis for the withdrawal of the proceeds of insurance on,
the consideration for the release of or the proceeds of the disposal of,
any unfundable property;
(iii) as the basis of a credit under subdivision (b) of Section 41
hereof against retirements of unfundable property; and
(iv) for inclusion in the additions under the provisions of clause (B)
of subdivision (II) of this Section 4 to such extent as may be necessary to
equal the deductions under clause (A) of subdivision (II) of this Section 4
with respect to such unfundable property retired.
(II) When any property additions are certified to the Trustee in any
certificate under any of the provisions of this Indenture as the basis either of
the right to the authentication and delivery of bonds which are being applied
for or of the right to the authentication and delivery of bonds which is being
waived pursuant to the provisions of this Indenture, (A) there shall be deducted
from the cost or fair value thereof, as the case may be, an amount equal to the
cost (or as to property additions the fair value of which at the time the same
became funded property was less than the cost as determined pursuant to this
Section, then such fair value in lieu of cost) of all funded property previously
retired (other than the funded property, if any, in connection with the
application for the release of which such certificate is filed) and not
theretofore deducted from the cost or fair value of property additions
theretofore certified to the Trustee and (B) there shall be added to such cost
or fair value of property additions as the case may be, the sum of
(a) the principal amount of all obligations secured by purchase money
mortgage and all cash (other than proceeds of such purchase money
obligations) received by the Trustee or the trustee or other holders of any
prior lien, in either case representing the proceeds of insurance on, the
consideration for the release of or the proceeds of the disposal of, such
funded property retired;
(b) the principal amount of any bond or fraction of a bond, the right
to the authentication and delivery of which under the provisions of Section
31 hereof shall have been waived as the basis of the release of such funded
property retired;
(c) one hundred forty-two and six-sevenths per centum (142 6/7%) of
the principal amount of each bond or fraction of a bond, the right to the
authentication and delivery of which under the provisions of Section 23
hereof shall have been waived as the basis of the release of such funded
property retired;
(d) one hundred forty-two and six-sevenths per centum (142 6/7%) of
the principal amount of each bond or fraction of a bond, the right to the
authentication and delivery of which upon the basis of property additions
shall have been waived as the basis of the release of such funded property
retired; and
(e) the amount of the proceeds of insurance on or of the disposal of
such funded property retired which shall have been applied by the Company
to the acquisition or construction of property in substitution therefor or
replacement thereof in the exercise by the Company of any right so to apply
such proceeds without depositing such proceeds with the Trustee hereunder
or with the trustee or other holder of a prior lien as hereinafter defined;
provided, however, that the aggregate of the amounts added under clause (B)
above shall in no event exceed the amounts deducted under clause (A) above. For
the purposes of the deductions required by this subdivision (II) of Section 4,
the cost and/or the fair value of funded property retired shall be determined as
follows: (1) in the case of property which was owned by Indianapolis Power &
Light Company on April 30, 1940, the cost shall be the cost as shown on the
books of the Company on April 30, 1940, or, if such cost shall subsequent to
April 30, 1940 be adjusted on the books of the Company pursuant to any order,
rule, regulation or recommendation of any governmental commission or other
public authority having or assuming jurisdiction over the Company or over any of
its property or business, then such adjusted cost; provided, however, that if
the cost or adjusted cost, as the case may be, is not separately shown on the
books of the Company, the cost shall be such proportion of such cost or adjusted
cost, as the case may be, as shall be allocated on the books of the Company to
such property retired, such allocation to be evidenced by an engineer's
certificate subsequently delivered to the Trustee; and (2) in the case of
property additions retired, the cost and the fair value thereof, respectively,
shall be the cost and the fair value thereof respectively, to the Company, as
shown by the engineer's certificate or independent engineer's certificate
furnished to the Trustee at the time such property additions became funded
property, or, if not so separately shown, shall be such portion of the cost
and/or the fair value to the Company of property additions shown in such
certificate as shall be allocated to such property additions retired in any
engineer's certificate subsequently delivered to the Trustee, and in case such
property additions shall not have been included in any engineer's certificate or
independent engineer's certificate theretofore furnished to the Trustee, the
cost and fair value thereof shall be as shown, as of the time when they became
funded property, in an engineer's certificate then delivered to the Trustee.
III. The Company covenants that it will promptly retire on its books (1)
such of the mortgaged and pledged property (other than the properties referred
to in paragraph B of Section 66 hereof) which at or subsequent to the date it
became mortgaged and pledged property was or became used or useful in the
Company's business and thereafter ceased to be used or useful in the Company's
business; (2) all mortgaged and pledged property that has been sold or disposed
of by the Company; and (3) all property which any independent engineer's
certificate, filed with the Trustee pursuant to paragraph (II) of Section 41,
states should be retired.
SECTION 5. The term "funded property" shall mean:
(1) All property owned by Indianapolis Power & Light Company on April
30, 1940 (other than property of the character described in clauses (1) to
(4) inclusive of the proviso in the granting clauses hereof which expressly
excepts certain property from the lien and operation of this Indenture);
(2) All property additions to the extent that the same shall have been
made the basis of the authentication and delivery of bonds under this
Indenture;
(3) All property additions to the extent that the same shall have been
made the basis of the release from the lien of this Indenture of funded
property;
(4) All property to the extent that the same shall have been
substituted for or shall have replaced funded property, as defined in this
Section, in the exercise by the Company of any right to apply the proceeds
of insurance on, or of the disposal of, such funded property to the
acquisition or construction of such substituted or replaced property
without depositing such proceeds with the Trustee hereunder or with the
trustee or other holder of a prior lien as hereinafter defined;
(5) All property additions to the extent that the same shall have been
made the basis of the withdrawal of any funded cash, as hereinafter defined
in this Section, held by the Trustee hereunder or by the trustee or other
holder of a prior lien as hereinafter defined;
(6) All property additions to the extent that the same shall have been
made the basis of a credit under the provisions of subdivision (c) of
Section 41 hereof;
(7) All property which may hereafter be acquired by the Company from
any corporation of which the Company on May 1, 1940 owned more than fifty
per centum (50%) of its outstanding stock.
If any funded property shall be released from the lien hereof as
hereinafter in Article XIII provided, the property so released shall thereupon
cease to be funded property but may at any time thereafter again become funded
property.
The term "funded cash" shall mean:
(a) cash (held by the Trustee hereunder or by the trustee or other
holder of a prior lien as hereinafter defined in Section 6 hereof) to the
extent that it represents the proceeds of insurance on or the release of or
the taking by eminent domain of funded property;
(b) cash held at any time in any sinking fund or other like device for
the retirement of bonds of one or more series issued hereunder; but when
all bonds of such one or more series shall have ceased to be outstanding
hereunder, such cash shall no longer be deemed to be or to have been funded
cash; and
(c) any cash deposited with the Trustee under Sections 20, 32 and/or
41 hereof.
SECTION 6. The term "excepted encumbrances" shall mean as of any particular
time any of the following:
(a) liens for taxes, assessments or governmental charges not then
delinquent;
(b) any liens or other encumbrances existing upon easements or rights
of way used for transmission line, distribution line or other right of way
purposes or upon the lands over which said easements or rights of way are
held securing indebtedness which has neither been assumed or guaranteed by
the Company nor on which the Company customarily pays interest charges;
(c) rights reserved to or vested in any municipality or public
authority by the terms of any franchise, grant, license, permit, or by any
provision of law to terminate such franchise, grant, license or permit or
to purchase or recapture or to designate a purchaser of any of the property
of the Company;
(d) rights reserved to or vested in others to take or receive any part
of the power developed or generated by any property of the Company;
(e) easements or reservations in any property of the Company created
at or before the acquisition thereof by the Company for the purpose of
roads, pipe lines, transmission lines and other like purposes and which do
not impair the use of such property in the operation of the business of the
Company;
(f) rights reserved to or vested in any municipality or public
authority to use or control or regulate any property of the Company or to
erect structures thereon; or
(g) any obligations or duties affecting the property of the Company to
any municipality or public authority with respect to any franchise, grant,
license or permit.
The term "prior lien" shall mean mortgage or other lien (not including
excepted encumbrances as defined in this Section) prior to the lien of this
Indenture, existing at any particular time upon any property additions (so long
as such property additions remain subject to the lien hereof), then or
theretofore made the basis under any of the provisions of this Indenture for the
authentication and delivery of bonds or the withdrawal of cash or the release of
property or the basis of a credit under the provisions of subdivision (c) of
Section 41 hereof.
The term "prior xxxx xxxxx" shall mean bonds, obligations or principal
indebtedness secured by prior liens.
The term "outstanding" with respect to prior xxxx xxxxx shall mean as of
any particular time all prior xxxx xxxxx theretofore authenticated and delivered
by the trustee or other holder of the prior lien securing the same and/or, if
there be no such trustee or other holder, all prior xxxx xxxxx theretofore made
and delivered by the maker (or his successor) of such prior lien and secured
thereby and all other prior xxxx xxxxx otherwise secured, except (a) prior xxxx
xxxxx theretofore paid, retired, redeemed, discharged or canceled, (b) prior
xxxx xxxxx held in pledge hereunder, (c) prior xxxx xxxxx for the purchase,
payment or redemption of which moneys in the necessary amount shall have been
deposited with or be held, with irrevocable direction so to apply, by the
Trustee hereunder or by the trustee or other holder of such prior lien, and (d)
prior xxxx xxxxx upon transfer of which or in exchange or substitution for
and/or in lieu of which other prior xxxx xxxxx have been authenticated and
delivered or made and delivered under any of the provisions of the prior lien
securing such prior xxxx xxxxx.
SECTION 7. The term "net earnings certificate" shall mean a certificate
signed and verified by the President or a Vice-President and the Treasurer or an
Assistant Treasurer of the Company, (which Treasurer or Assistant Treasurer
shall be an accountant) stating (A) the net earnings of the Company for a period
of any twelve (12) consecutive calendar months within the fifteen (15) calendar
months immediately preceding the first day of the month in which the application
for the authentication and delivery under this Indenture of bonds then applied
for is made, showing how the same have been calculated, and to that end
specifying the total operating revenues of the Company, with the principal
divisions thereof, and the net non-operating income of the Company, and
deducting from the total thereof the total of the operating expenses (including
(a) taxes--other than income taxes, profits taxes and other taxes measured by,
or dependent on, net income after deduction of interest, (b) rentals and
insurance, and (c) expenses for current repairs and maintenance, but not
including any expenses or provisions for renewals, replacements or depreciation
or interest on any of the indebtedness of the Company or the amortization of
debt discount and expense or for any sinking fund or other like device for the
retirement of indebtedness), and further deducting from such balance of earnings
the amount by which the aggregate of (1) net non-operating income and (2) net
income which in the opinion of the signers is directly derived from the
operation of property not subject to the lien of this Indenture at the date of
such certificate, exceeds ten per centum (10%) of such balance of earnings; the
amount so arrived at being for all purposes of this Indenture the net earnings
of the Company for such period; and (B) the annual interest requirements upon,
and the principal amount of, (1) all bonds outstanding hereunder at the date of
such certificate, except any which are then being made the basis, pursuant to
the provisions of Article VII, for the authentication and delivery of bonds, (2)
those then applied for in the application in connection with which such
certificate is made and those applied for in any other pending application, and
(3) all other indebtedness (except indebtedness for the purchase, payment or
redemption of which moneys in the necessary amount shall have been deposited
with or be held by the Trustee or the trustee or other holder of a lien prior
hereto with irrevocable direction so to apply the same) outstanding in the hands
of the public on the date of such certificate and secured by lien prior to the
lien of this Indenture upon property of the Company subject to the lien of this
Indenture, if said indebtedness has been assumed by the Company or if the
Company customarily pays the interest upon the principal thereof. In determining
net non-operating income there shall not be included profits realized or losses
sustained from the sale or other disposition of capital assets or profits or
losses on retirements of bonds secured hereby.
If any of the property of the Company owned by it at the time of the making
of any net earnings certificate shall have been acquired during or after any
period for which net earnings are to be computed, the net earnings of such
property (computed in the manner specified in this Section for the computation
of the net earnings of the Company) during such period or such part of such
period as shall have preceded the acquisition thereof, to the extent that the
same have not otherwise been included, and unless such property shall have been
acquired in exchange or substitution for property the earnings of which have
been included, shall be included in the net earnings of the Company for all
purposes of this Indenture unless in the opinion of the Company, evidenced by a
Treasurer's certificate delivered to the Trustee, it is impracticable to
determine such net earnings without unreasonable effort or expense; in like
manner, the net earnings of any property to be acquired through the issue of
bonds applied for in the application in connection with which such net earnings
certificate is made shall be included in the net earnings of the Company unless
it is impracticable to determine such net earnings as aforesaid.
In any application for the authentication and delivery of bonds where a net
earnings certificate is required, if (1) the twelve months' period covered by
the net earnings certificate is covered by the annual reports of the Company
which the Company has filed or is at the date of the net earnings certificate
required to file with the Trustee pursuant to subdivision (1) of Section 52
hereof, and (2) the aggregate principal amount of bonds then applied for plus
the aggregate principal amount of bonds authenticated and delivered since the
commencement of the then current calendar year (other than those with respect to
which a net earnings certificate is not required or with respect to which a net
earnings certificate signed by an independent public accountant appointed by the
Company and approved by the Trustee in the exercise of reasonable care, has
previously been furnished) is ten per centum (10%) or more of the aggregate
amount of the bonds at the time out standing hereunder, such net earnings
certificate shall be made and signed by an independent public accountant
appointed by the Company and approved by the Trustee in the exercise of
reasonable care, in addition to being signed and verified by such officers of
the Company.
Each such certificate shall include the statements required by Section 21
hereof.
ARTICLE II.
FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS.
SECTION 8. At the option of the Company, the bonds issued hereunder may be
issued in one or more series, the bonds of each series (other than the 3 1/4%
Series due 1970, hereinafter in Section 19 described) maturing on such date or
dates and bearing interest at such rate or rates as the Board of Directors of
the Company prior to the authentication thereof may determine. Except as to the
3 1/4% Series due 1970, the form of each series of bonds issued hereunder and of
the coupons to be attached to the coupon bonds of such series shall be
established by an indenture supplemental hereto authorized by resolution of the
Board of Directors of the Company. The bonds and coupons of any one or more
series may be expressed in one or more foreign languages, if also expressed in
the English language. The English text shall govern the construction thereof and
both or all texts shall constitute but a single obligation. The English text of
the coupon bonds, coupons, fully registered bonds and the Trustee's certificate
shall be respectively substantially of the tenor and purport above recited,
provided, however, that the form of each series, as established by the Board of
Directors, shall specify the descriptive title of the bonds (which shall contain
the words "First Mortgage Bond"), the designation of the series, the date of the
coupon bonds of that series, the rate or rates of interest to be borne by the
bonds of that series, the date or dates of maturity, the dates for the payment
of interest, and a place for the payment of principal and interest and for the
registration and transfer of the bonds. Subject to the provisions of Section 19
hereof with respect to the 3 1/4% Series due 1970, any series of bonds may also
contain such provisions as the Board of Directors may, in its discretion, cause
to be inserted therein:
(a) specifying any additional place or places, either in the United
States of America or, subject to the provisions of Section 18 hereof,
elsewhere, for the payment of principal and/or interest and/or for the
registration and/or the transfer of bonds;
(b) expressing any obligation of the Company for the payment of the
principal of the bonds of that series or the interest thereon, or both,
without deduction for taxes and/or for the reimbursement of taxes in case
of payment by the bondholders, which obligation may be limited to taxes
imposed by any taxing authorities of a specified class and may exclude from
its operation or be limited to any specified tax or taxes or any portion
thereof; and/or expressing any obligation of the Company for the creation
of a sinking fund or other similar device for the retirement of bonds of
that series, and/or expressing any obligation of the Company to permit the
conversion of bonds of that series into capital A stock of the Company of
any designated class or classes;
(c) permitting the bondholders to make, at a specified place or
places, any or all of the. following exchanges, viz., exchanges of coupon
bonds for fully registered bonds; exchanges of fully registered bonds for
coupon bonds; exchanges of coupon bonds for coupon bonds of other
denominations; exchanges of fully registered bonds for fully registered
bonds of other denominations; and exchanges of bonds of one series for
bonds of another series; and such privilege of exchange may in any case be
made subject to such conditions, limitations or restrictions as the Board
of Directors may determine and the privilege of exchange may in any case be
conferred upon the holders of bonds of one or more denominations and
withheld from the holders of bonds of other denominations of the same
series and may in any case be conferred on the holders of fully registered
bonds and withheld from the holders of coupon bonds or vice versa;
(d) reserving to the Company the right to redeem all or any part of
the bonds of that series before maturity at a time or times and at a
redemption price or prices to be specified in the form of bond; and/or
(e) in any other respect expressing or referring to the terms and
conditions upon which such bonds are to be issued and/or secured under this
Indenture or any indenture supplemental hereto.
SECTION 9. Any series of bonds may be executed, authenticated and delivered
originally as coupon bonds and/or as fully registered bonds, of such
denomination or denominations as the Board of Directors of the Company may from
time to time authorize.
SECTION 10. Every fully registered bond of any series shall be dated as of
the date of authentication (except that if any fully registered bond of any
series shall be authenticated upon any interest payment date for that series, it
shall be dated as of the day following) and shall bear interest from the
beginning of the current interest period for that series, provided, however,
that if any fully registered bond shall be authenticated and delivered upon a
transfer of or in exchange for any bond or bonds upon which interest is in
default, it shall be dated so that no gain or loss of interest shall result
therefrom. The coupon bonds of each series of bonds issued hereunder shall be
dated as of such date as may be determined by the Board of Directors of the
Company and designated in the form established for such series.
SECTION 11. Any bond may have imprinted thereon or included therein any
legend or legends required in order to comply with any law or with any rules or
regulations made pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage, and the Board of Directors of the Company by
resolution may at any time amend any legend on bonds then outstanding so as to
comply with any such law, rule or regulation, or so as to conform to usage.
SECTION 12. In all cases in which the privilege of exchanging bonds exists
and is exercised, the bonds to be exchanged shall be surrendered at such place
or places as shall be designated by the Board of Directors of the Company for
the purpose, with all unmatured coupons appertaining thereto (in the case of
coupon bonds) and the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor the bond or bonds which the bondholder making
the exchange shall be entitled to receive. All bonds so surrendered for exchange
shall be in bearer form or if registered, accompanied by a written instrument or
instruments of transfer in form approved by the Company duly executed by the
registered holder or by his duly authorized attorney. All Bonds so surrendered
for exchange and the unmatured coupons appertaining thereto shall be canceled by
the Trustee and upon the request of the Company may be cremated by the Trustee
and a certificate evidencing the cremation thereof delivered to the Company.
Upon every transfer of bonds as permitted by the next succeeding Section, and
upon every exchange of bonds, the Company may make a charge therefor sufficient
to reimburse it for any tax or taxes or other governmental charge required to be
paid by the Company and in addition may charge a sum not exceeding two dollars
($2) for each bond issued upon any such transfer or exchange which shall be paid
by the party requesting such transfer or exchange as a condition precedent to
the exercise of the privilege of making such transfer or exchange. The Company
shall not be required to make transfers or exchanges of bonds of any series for
a period of ten (10) days next preceding any interest payment date of said
series.
SECTION 13. The Company shall keep at such place or places as shall be
designated for the purpose, books for the registration and transfer of bonds
issued hereunder, which, at all reasonable times, shall be open for inspection
by the Trustee; and upon the presentation for such purpose at any such place or
places, the Company will register or cause to be registered therein, and permit
to be transferred thereon, under such reasonable regulations as it may
prescribe, any bonds issued under this Indenture and entitled to registration or
transfer at such office. Upon the registration of any coupon bond as to
principal, the fact of such registration shall be noted on such bond. Upon the
transfer of any fully registered bond the Company shall issue in the name of the
transferee or transferees a new fully registered bond or new fully registered
bonds of the same series for a like principal amount and the Trustee shall
authenticate and deliver the same to him or them. All fully registered bonds so
surrendered for transfer shall be canceled by the Trustee and upon the request
of the Company may be cremated by the Trustee and a certificate evidencing the
cremation thereof delivered to the Company.
SECTION 14. All bonds issued hereunder shall, from time to time, be
executed on behalf of the Company by its President or one of its Vice Presidents
and its corporate seal shall be thereunto affixed and attested by its Secretary
or one of its' Assistant Secretaries. The coupons to be attached to coupon bonds
shall bear the facsimile signature of the present or any future Treasurer of the
Company. In case any of the officers who shall have signed any bonds or attested
the seal thereon or whose facsimile signature appears on any coupons, shall
cease to be such officers of the Company before the bonds so signed and/or
sealed shall have been actually authenticated and delivered by the Trustee or
issue by the Company, such bonds nevertheless may be authenticated, delivered
and/or issued with the same force and effect as though the person or persons who
signed such bonds or attested the seal thereon or whose facsimile signature
appears on any coupons had not ceased to be such officer or officers of the
Company. Before authenticating any coupon bonds the Trustee shall cut off,
cancel and cremate all matured coupon thereto attached (except as otherwise
provided in Sections 12 and 16 hereof), and shall deliver to the Company a
certificate evidencing the cremation thereof.
SECTION 15. There may be authenticated and delivered and issued from time
to time in lieu of any definitive bond or bonds under this Indenture one or more
temporary typewritten, printed, lithographed or engraved bonds substantially of
the tenor of the bonds hereinbefore described, with or without one or more
coupons, and with or without the privilege of registration as to principal only,
or as to both principal and interest, and such temporary bond or bonds may be in
such denomination or denominations as the officers of the Company executing the
same may determine. Until a definitive bond or bonds secured hereby are issued
in exchange therefor, each such temporary bond or bonds shall be entitled to the
lien and benefit of this Indenture. Upon the exchange by the Company of
definitive coupon bonds or definitive fully registered bonds for temporary
bonds' (which exchange the Company shall make on request of, and without charge
to, the holder, when definitive bonds are ready for delivery) such temporary
bond or bonds and any unmatured coupons appertaining thereto shall be canceled
by the Trustee and upon the request of the Company may be cremated by the
Trustee and a certificate evidencing such cremation delivered to the Company.
When and as interest is paid upon any unregistered temporary bond without
coupons, the fact of such payment shall be noted thereon and interest due on any
temporary bond which is represented by a coupon shall be paid only upon
presentation and surrender of such coupon for cancellation. Temporary bonds
without coupons of any series shall bear interest from the beginning of the
current interest period for bonds of such series in which such temporary bonds
without coupons shall be authenticated. The holder of one or more temporary
bonds may exchange the same on the surrender thereof in bearer form or, if
registered, accompanied by a written instrument or instruments of transfer in
form approved by the Company, duly executed by the registered holder or by his
duly authorized attorney, with all unmatured coupons, if any, appertaining
thereto, to the Trustee for cancellation, and shall be entitled to receive a
temporary bond or bonds' of the same series of like aggregate principal amount
of such other denominations as the Company may determine to issue in exchange.
SECTION 16. Upon receipt by the Company and the Trustee of evidence
satisfactory to them, of the loss, destruction or mutilation of any bond
outstanding hereunder and the coupons appertaining thereto, and of indemnity
satisfactory to them, and upon payment, if the Company shall require it, of a
reasonable charge and upon reimbursement to the Company and the Trustee of all
reasonable expense incident thereto, and upon surrender and cancellation of such
bond, if mutilated, and the coupons appertaining thereto, if any, the Company
may execute, and the Trustee may authenticate and deliver, a new bond of like
tenor and of the same series with corresponding coupons in the appropriate case,
in lieu of such lost, destroyed or mutilated bond and coupons, if any.
Any duplicate bonds and/or coupons issued pursuant to this Section shall
constitute original additional contractual obligations on the part of the
Company, whether or not the lost, destroyed or mutilated bonds or coupons, be at
any time found by anyone, and shall be equally secured and entitled to equal and
proportionate benefits with all other bonds and coupons issued hereunder in any
moneys or property at any time held by the Trustee for the benefit of the
bondholders.
SECTION 17. No bond shall be secured hereby unless there shall be endorsed
thereon the certificate of the Trustee, substantially in the form hereinabove
recited, that it is one of the bonds (or temporary bonds), of the series
designated therein, herein provided for; and such certificate on any such bond
shall be conclusive evidence that such bond has been duly authenticated and
delivered and when issued will be secured hereby.
SECTION 18. The Company may provide for effecting payment of the principal
of or interest on bonds of any series at one or more places in foreign
countries, provided that such payment shall be only the stated amount of such
principal and/or interest in lawful money of the United States of America, or
the equivalent thereof in the appropriate local foreign currency at the buying
rate at the time of such payment at such place or places for sight drafts on New
York.
SECTION 19. Notwithstanding any of the provisions hereinbefore in this
Article II contained to the contrary, which said contrary provisions shall not
be applicable to the bonds in this Section described, there shall be a series of
bonds designated "3 1/4% Series due 1970" (herein sometimes referred to as the
"1970 Series"), each of which shall also bear the descriptive title First
Mortgage Bond, and the form thereof and of the appurtenant coupons, which shall
be established by resolution of the Board of Directors of the Company, shall
contain suitable provisions with respect to the matters hereinafter in this
Section specified. Bonds of the 1970 Series shall be limited to the Thirty- two
million dollars ($32,000,000) thereof provided to be issued in Section 22 hereof
(subject to the provisions of Section 16 hereof), shall mature on May 1, 1970,
and shall be issued as coupon bonds in the denomination of One thousand dollars,
registerable as to principal, and as fully registered bonds in denominations of
One thousand dollars and Five thousand dollars and, at the option of the
Company, in any multiple or multiples of Five thousand dollars; they shall bear
interest at the rate of three and one-quarter per centum (3 1/4%) per annum,
payable semi-annually on May 1 and November 1 of each year; and the principal of
and interest on each said bond shall be payable in lawful money of the United
States of America at the office or agency of the Company, in the City of
Chicago, Illinois. American National Bank and Trust Company of Chicago is hereby
designated and appointed the office and agency of the Company for the payment of
the principal of and interest on the bonds of the 1970 Series; all reference
herein to the office or agency of the Company for the payment of the principal
of or interest on the bonds of the 1970 Series being a reference to American
National Bank and Trust Company of Chicago. In the event of the resignation or
inability to act of American National Bank and Trust Company of Chicago, then a
successor paying agent or agents in the City of Chicago, Illinois, with respect
to the principal of and interest on the bonds of the 1970 Series, shall be
appointed by the Board of Directors of the Company.
Coupon bonds of the 1970 Series shall be dated as of May 1, 1940, and fully
registered bonds of the 1970 Series shall be dated as in Section 10 hereof
provided.
Bonds of the 1970 Series shall be redeemable at the option of the Company
in whole or in part at any time, prior to maturity, upon at least thirty (30)
days' published notice (such publication to be made at least once in each of
four (4) successive calendar weeks upon any secular day of each such calendar
week which need not be the same day in each week) at the principal amount
thereof and accrued interest to such date of redemption, together with the
following premiums of the principal amount of the Bonds of the 1970 Series to be
redeemed: 7 1/2% to and including April 30, 1941; 7% thereafter to and including
April 30, 1942; 6 1/2 % thereafter to and including April 30, 1943; 6%
thereafter to and including April 30, 1944; 5 1/2% thereafter to and including
April 30, 1945; 5% thereafter to and including April 30, 1946; 4 1/2 %
thereafter to and including April 30, 1947; 4% thereafter to and including April
30, 1948; and thereafter with the same premiums as would be payable if such
redemption were being made pursuant to the provisions of paragraph B of Section
69 hereof;
or, in case of redemption pursuant to the provisions of paragraph B of Section
69 hereof, at the principal amount thereof and accrued interest to such date of
redemption, together with the following premiums of the principal amount of the
Bonds of the 1970 Series to be redeemed: 4.50% to and including April 30, 1941;
4.41% thereafter to and including April 30, 1942; 4.31% thereafter to and
including April 30, 1943; 4.21% thereafter to and including April 30, 1944;
4.11% thereafter to and including April 30, 1945; 4% thereafter to and including
April 30, 1946; 3.90% thereafter to and including April 30, 1947; 3.78%
thereafter to and including April 30, 1948; 3.67% thereafter to and including
April 30, 1949; 3.55% thereafter to and including April 30, 1950; 3.43%
thereafter to and including April 30, 1951; 3.30% thereafter to and including
April 30, 1952; 3.17% thereafter to and including April 30, 1953; 3.03%
thereafter to and including April 30, 1954; 2.89% thereafter to and including
April 30, 1955; 2.75% thereafter to and including April 30, 1956; 2.60%
thereafter to and including April 30, 1957; 2.45% thereafter to and including
April 30, 1958; 2.30% thereafter to and including April 30, 1959; 2.13%
thereafter to and including April 30, 1960; 1.97% thereafter to and including
April 30, 1961; 1.80% thereafter to and including April 30, 1962; 1.62%
thereafter to and including April 30, 1963; 1.44% thereafter to and including
April 30, 1964; 1.25% thereafter to and including April 30, 1965; 1.06%
thereafter to and including April 30, 1966; 0.86% thereafter to and including
April 30, 1967; 0.66% thereafter to and including April 30, 1968; 0.45%
thereafter to and including April 30, 1969; 0.23% thereafter to and including
April 30, 1970;
or, in case of redemption by the application of cash deposited with the Trustee
pursuant to Section 20 hereof, at the principal amount thereof and accrued
interest to such date of redemption, together with the same premiums as would be
applicable if such redemption were being made pursuant to the provisions of
paragraph B of Section 69 hereof.
At the option of the holder, any coupon bonds of the 1970 Series, upon
surrender thereof with all unmatured coupons appertaining thereto at the office
or agency of the Company in the City of Chicago, Illinois, shall be exchangeable
for a like aggregate principal amount of fully registered bonds of the same
series of authorized denominations.
At the option of the registered holder, any fully registered bonds of the 1970
Series, upon surrender thereof at said office or agency of the Company together
with a written instrument of transfer in form approved by the Company duly
executed by the registered holder or by his duly authorized attorney, shall be
exchangeable for a like aggregate principal amount of coupon bonds of the same
series, with all unmatured coupons attached, or for a like aggregate principal
amount of fully registered bonds of the same series of other authorized
denominations.
The holder of any coupon bond of the 1970 Series may have the ownership
thereof registered as to principal on the books of the Company at the office or
agency of the Company in the City of Chicago, Illinois, and such registration
noted on such bond. After such registration no transfer of such bond shall be
valid unless made at said office or agency by the registered holder in person or
by his duly authorized attorney and similarly noted on such bond; but the same
may be discharged from registration by being in like manner transferred to
bearer and thereupon transferability by delivery shall be restored; but such
bond may again from time to time be registered or transferred to bearer in
accordance with the above procedure. Such registration, however, shall not
affect the negotiability of the coupons appertaining to such bonds, but every
such coupon shall continue to be transferable by delivery merely and shall
remain payable to bearer. Fully registered bonds of the 1970 Series shall also
be transferable on the books of the Company at said office or agency of the
Company by the registered holder thereof, in person or by his duly authorized
attorney, upon surrender for cancellation thereof.
SECTION 20. The Company covenants that, so long as any of the bonds of the
1970 Series issued under this Indenture shall remain outstanding, it will, on or
before the first day of December of each year beginning with the year 1949,
deliver to the Trustee for the benefit of the holders or the registered owners
of bonds of the 1970 Series:
An amount in cash and/or principal amount of bonds of the 1970 Series
equivalent to one per centum (1%) of the greatest principal amount of bonds of
the 1970 Series theretofore at any one time outstanding.
Such cash together with any bonds delivered to the Trustee under the
provisions of this Section shall be dealt with a's provided for by this Section.
All cash deposited by the Company with the Trustee pursuant to the
provisions of this Section shall be applied by the Trustee from time to time and
as rapidly as may be practicable to the purchase of bonds of the 1970 Series
then outstanding, at public or private sale at the lowest prices at which such
bonds can be obtained, not exceeding, however, the then redemption price, or, if
the Company shall so request, the Trustee shall apply any cash then held by it
under this Section to the redemption of bonds of the 1970 Series as soon as may
be practicable after such request. In case the balance of such cash remaining
with the Trustee on the twentieth day of March of any year beginning with the
year 1950 shall aggregate $25,000 or more, the Trustee shall apply the same to
the redemption of bonds of the 1970 Series on the next succeeding first day of
May, such redemption to be in the manner provided in Article XII hereof. The
Company shall have the right to tender bonds of the 1970 Series for sale by it
to the Trustee under the provisions of this Section.
The Company shall pay to the Trustee, on demand, the amount of accrued and
unpaid interest, and premiums paid, if any, upon all bonds purchased or redeemed
pursuant to this Section.
Any bonds deposited, purchased or redeemed pursuant to the provisions of
this Section, shall forthwith be canceled by the Trustee, and upon the request
of the Company, the Trustee may cremate the same and deliver to the Company a
certificate of such cremation.
ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS.
SECTION 21. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that the person making such certificate or opinion has read such
covenant or condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with, and (d) a statement as to whether or not in
the opinion of such person such condition or covenant has been complied with.
In addition to such other certificates or opinions as may be required by
other provisions of this Indenture or any indenture supplemental hereto, every
request or application by the Company for action by the Trustee shall be
accompanied by an opinion of counsel and a certificate of the President or a
Vice-President or the Treasurer or an Assistant Treasurer of the Company, or any
two of them, each such opinion of counsel and certificate stating that, in the
signers' opinion, the conditions precedent, if any, to such action provided for
in this Indenture (including any covenants, compliance with which constitutes a
condition precedent) will, on the delivery to the Trustee of such opinion of
counsel, resolutions, certificates and other documents, if any, annexed thereto,
have been complied with.
Any certificate or opinion of an officer or officers of the Company or of
an engineer may be based, in so far as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, and, in so far as it
relates to compliance by the Company with the net earnings requirements of
Sections 7 and 29 or with the provisions of Sections 41 and 47 or to
computations of costs, upon the books and records of the Company or upon a
certificate or opinion of, or representations by, an accountant or accountants
or the Treasurer or an Assistant Treasurer or the Comptroller or an Assistant
Comptroller of the Company, unless such officer or officers or engineer knows
that the books and records of the Company or the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion may be based as aforesaid are erroneous or, in the exercise of
reasonable care, should have known that the same were erroneous. Any such
certificate or opinion of counsel may be based, in so far as it relates to
factual matters, information with respect to which is in the possession of the
Company, upon a certificate or opinion of, or representations by, an officer or
officers of the Company, and, in so far as it relates to compliance by the
Company with said net earnings requirements or with the provisions of said
Sections 41 and 47 or to computations of costs, upon a certificate or opinion
of, or representations by, an accountant or accountants or the Treasurer or an
Assistant Treasurer or the Comptroller or an Assistant Comptroller of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion may be based as aforesaid are erroneous or, in the exercise of
reasonable care, should have known that the same were erroneous.
ARTICLE IV.
INITIAL ISSUE OF BONDS.
SECTION 22. Bonds of the 1970 Series for the aggregate principal amount of
Thirty-two million Dollars ($32,000,000) shall forthwith be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered (whether before or after the filing or recording hereof) from time
to time, in accordance with the order or orders of the Company, evidenced by a
writing or writings signed by the Company by its President or one of its Vice-
Presidents and its Treasurer or one of its Assistant Treasurers.
SECTION 23. Additional bonds of any one or more series, other than the 1970
Series, for an aggregate principal amount of not exceeding Five hundred thousand
Dollars ($500,000) may be executed from time to time by the Company and
delivered to the Trustee and shall be authenticated by the Trustee and delivered
(whether before or after the filing or recording hereof) from time to time upon
receipt by the Trustee of a resolution such as is described in subdivision (1)
of Section 30 hereof, accompanied by a Treasurer's certificate, net earnings
certificate, opinion of counsel and supplemental indenture such as are described
in subdivisions (2), (3), (4) and (6), respectively, of Section 32 hereof,
together with the officially authenticated certificates or other documents, if
any, specified in such opinion of counsel; such Treasurer's certificate shall
also state that the right to the authentication and delivery of the bonds then
applied for under this Section has not previously been waived as the basis under
any of the provisions of this Indenture for the authentication and delivery of
bonds or the withdrawal of cash or the release of property or the basis of a
credit under the provisions of subdivision (e) of Section 41 hereof.
ARTICLE V.
GENERAL PROVISIONS AS TO ISSUE OF BONDS.
SECTION 24. The aggregate principal amount of bonds which may be secured by
this Indenture shall be such aggregate principal amount as may now or hereafter
from time to time be authenticated and delivered under the provisions hereof.
Nothing in this Indenture contained shall limit the power of the Board of
Directors of the Company to fix the price at which the bonds authenticated and
delivered under any of the provisions of this Indenture may be issued,
exchanged, sold or disposed of, but in so far as permitted by law (and subject
to the valid regulation of any public authority) any or all of said bonds may be
issued, exchanged, sold or disposed of upon such terms and for such
considerations as the Board of Directors of the Company may deem fit.
ARTICLE VI.
ISSUANCE OF BONDS UPON THE BASIS OF PROPERTY ADDITIONS.
SECTION 25. Bonds in addition to those provided for in Article IV hereof
and of any one or more series, other than the 1970 Series, may from time to time
be executed by the Company and delivered to the Trustee, and shall be
authenticated by the Trustee and delivered from time to time in accordance with
the order or orders of the Company, evidenced by a writing or writings signed by
the Company by its President or one of its Vice-Presidents and its Treasurer or
one of its Assistant Treasurers, upon the basis of property additions, but only
in accordance with and subject to the conditions, provisions and limitations set
forth in the next succeeding five Sections of this Indenture, numbered from 26
to 30, both inclusive.
SECTION 26. No bonds shall be authenticated and delivered at any time under
the provisions of this Article VI upon the basis of funded property.
SECTION 27. Bonds of any one or more series, other than the 1970 Series,
shall be authenticated and delivered under the provisions of this Article VI
upon the basis of property additions for a principal amount not exceeding
seventy per centum (70%) of the balance of the cost or of the fair value thereof
to the Company (whichever is less) after making any deductions and any additions
required by subdivision (II) of Section 4 hereof. The cost of any such property
additions (except as otherwise provided in the next succeeding sentence) shall
be deemed to be the sum of (1) any cash forming a part of such cost, which, for
all purposes of this Indenture, shall include amounts payable in cash, liability
for which has actually been incurred by the Company, (2) an amount equivalent to
the fair market value in cash (as of the date of delivery) of any securities
delivered in payment therefor or for the acquisition thereof and (3) the
principal amount of any outstanding prior xxxx xxxxx secured by lien upon such
property additions at the time of their acquisition unless the engineer's
certificate hereinafter in subdivision (3) of Section 30 hereof provided for
shall state that the principal amount of such prior xxxx xxxxx has theretofore
been included in cost when other property additions subject to the same prior
liens shall have been made the basis under any of the provisions of this
Indenture for the authentication and delivery of bonds or the withdrawal of cash
or the release of property or a credit under the provisions of subdivision (c)
of Section 41 hereof. The cost of any such property additions received or to be
received by the Company, in whole or in part, as consideration in exchange for
property released or to be released shall be determined in the manner provided
in paragraph A of Section 66 hereof. The amount of the cost of any property
additions and the then fair value thereof to the Company and the fair market
value in cash of any securities so delivered in payment therefor and the amount
of any deductions and any additions required to be made by subdivision (II) of
Section 4 hereof shall be determined for the purposes of this Article VI by the
appropriate certificates provided for in Section 30 hereof.
SECTION 28. No bonds shall be authenticated and delivered under the
provisions of this Article VI nor funded cash withdrawn nor funded property
released under any of the provisions of this Indenture nor a credit taken under
the provisions of subdivision (c) of Section 41 hereof, upon the basis of any
property additions subject to any prior lien unless, previous to or concurrently
with the making of the application for the authentication and delivery of bonds,
the withdrawal of funded cash, the release of funded property, or a credit under
the provisions of subdivision (c) of Section 41 hereof, cash and/or prior xxxx
xxxxx have been or are deposited with the trustee or other holder of the prior
lien securing such prior xxxx xxxxx and/or with the Trustee, in such manner that
immediately after such deposit and the granting of such application all prior
xxxx xxxxx secured by such prior lien outstanding immediately prior to such
deposit and the granting of such application will cease to be outstanding under
the provisions of Section 6 hereof. Prior xxxx xxxxx so delivered to the trustee
or other holder of the prior lien securing the same shall be surrendered for
cancellation, and prior xxxx xxxxx so deposited with the Trustee shall be held
under the provisions of Article XI hereof.
SECTION 29. No bonds shall be authenticated and delivered upon the basis of
property additions unless, as shown by a net earnings certificate, the net
earnings of the Company for the period referred to in such certificate shall
have been in the aggregate at least equivalent to two and one-half times the
annual interest requirements as shown by such net earnings certificate.
SECTION 30. No application by the Company to the Trustee for the
authentication and delivery of bonds hereunder upon the basis of property
additions shall be granted by the Trustee, until the Trustee shall have
received:
(1) a resolution requesting the Trustee to authenticate and deliver
bonds, (a) specifying the principal amount of bonds called for, the series
thereof (other than the 1970 Series) and any other matters with respect
thereto required by this Indenture, and (b) specifying the officer or
officers of the Company to whom, or upon whose written order, such bonds
shall be delivered;
(2) a Treasurer's certificate made and dated as of the date of such
application stating that the Company is not to the knowledge of the signers
in default under any of the provisions of this Indenture;
(3) an engineer's certificate made and dated not more than ninety (90)
days prior to the date of such application, describing the property
additions made the basis of the application in reasonable detail; stating
that they are property additions as defined in Section 4 hereof, that such
property additions are desirable for use in the proper conduct of the
Company's business, and that such property additions, to the extent of the
cost or fair value thereof to the Company (whichever is less) made the
basis of the application, do not consist of funded property; stating,
except as to property additions acquired, made or constructed wholly
through the delivery of securities, that the amount of cash forming all or
part of the cost thereof was equal to or more than an amount to be stated
therein; briefly describing with respect to any property additions
acquired, made or constructed in whole or in part through the delivery of
securities, the securities so delivered and stating the date of such
delivery; stating, as to property additions received or to be received by
the Company, in whole or in part, as consideration in exchange for property
released or to be released, the cost as determined pursuant to the
provisions of paragraph A of Section 66; stating, except as to property
additions in respect to the fair value to the Company of which a statement
is to be made in an independent engineer's certificate as provided for in
subdivision (4) of this Section, that the fair value to the Company of such
property additions at the date of such engineer's certificate is equal to
or more than an amount therein to be stated; stating the amounts required
to be deducted and added under the provisions of subdivision (II) of
Section 4 hereof; specifying the nature and extent of any prior liens (and
the principal amount of all outstanding prior xxxx xxxxx secured thereby)
existing upon any of such property additions and whether or not other
property additions subject to the same prior liens have theretofore been
made the basis under any of the provisions of this Indenture for the
authentication and delivery of bonds or the withdrawal of cash or the
release of property or the basis of a credit under the provisions of
subdivision (c) of Section 41 hereof, specifying the principal amount of
such prior xxxx xxxxx and/or cash deposited or to be deposited concurrently
with the Trustee or with the trustee or other holder of any prior lien
securing such prior xxxx xxxxx in compliance with Section 28 hereof; and
also stating (a) what part, if any, of such property additions includes
property which has been used or operated in the public utility business by
others than the Company within six months prior to the date of the
acquisition thereof by the Company and (b) the fair value of the property
referred to in the foregoing clause (a) if, and only if, in the opinion of
the signers such fair value is less than the greater of the two following
amounts: (i) Twenty-five thousand Dollars ($25,000); (ii) one per centum
(1%) of the aggregate principal amount of bonds at the time outstanding
hereunder. If any such property additions have been used or operated in the
public utility business by others than the Company, the amount of cash
stated to be all or any part of the cost thereof may include the amount of
cash forming all or any part of the cost of any rights and intangible
property simultaneously acquired with the same for which no separate or
distinct consideration shall have been paid or apportioned, and in such
case the term property additions as defined herein may include such rights
and intangible property; provided, however, in the determination of the
fair value of any such property additions, consideration shall be given
only to the value to the Company of such property additions exclusive of
the value of any such rights and intangible property;
(4) in case any property additions are shown by the engineer's
certificate provided for in subdivision (3) above to include property which
has been used or operated in the public utility business by others than the
Company within six months prior to the date of the acquisition thereof by
the Company and such engineer's certificate does not show the fair value of
such property to the Company to be less than the greater of the two
following amounts: (i) Twenty-five thousand Dollars ($25,000); (ii) one per
centum (1%) of the aggregate principal amount of the bonds at the time
outstanding hereunder, a further and independent engineer's certificate
stating as to such property additions which have been so used or operated
and (at the option of the Company) as to any other property additions
included in the engineer's certificate provided for in subdivision (3) of
this Section, that the aggregate fair value thereof to the Company at the
date of the engineer's certificate provided for in subdivision (3) above,
in the opinion of the signer, is an amount to be stated therein, together
with the signer's report thereon which shall contain a brief statement of
the conditions governing the signer's determination of such fair value and
a brief statement of the condition, serviceability and location of such
property additions; in case the independent engineer's certificate provided
for by this subdivision (4) is delivered in connection with the
authentication and delivery of bonds hereunder, such independent engineer's
certificate shall also state the fair value (which may be the fair value as
of the date that the property was previously certified to the Trustee) to
the Company of any property which (a) has been used or operated in the
public utility business by others than the Company within six months prior
to the date of the acquisition thereof by the Company, and (b) has been
subjected to the lien of this Indenture since the commencement of the then
current calendar year as the basis for the authentication and delivery of
bonds, the withdrawal of cash or the release of property pursuant to the
provisions of this Indenture and (c) as to which a certificate or opinion
of an independent engineer has not previously been furnished to the
Trustee.
(5) in case any property additions are shown by the engineer's
certificate provided for in subdivision (3) above to have been acquired,
made or constructed in whole or in part through the delivery of securities,
a written appraisal of an appraiser or other competent person, firm or
corporation to he selected by the Trustee and approved by the Board of
Directors of the Company, stating in the opinion of the signer the fair
market value in cash of such securities at the time of delivery thereof in
payment for or for the acquisition of such property additions. If any such
property additions are shown by such engineer's certificate to include
property which has been used or operated in the public utility business by
others than the Company, the appraised value of the securities stated to
have been delivered in payment therefor or for the acquisition thereof may
include the value of any portion of the securities delivered for any rights
and intangible property simultaneously acquired with the same, for which no
separate or distinct consideration shall have been paid or apportioned, and
in such case the term property additions as defined herein may include such
rights and intangible property;
(6) a net earnings certificate showing the net earnings of the Company
to be as required by Section 29 hereof;
(7) An opinion of counsel stating the signer's opinion to the effect
(a) that the Company has, or upon delivery of the instruments of
conveyance, transfer or assignment, if any, specified in such opinion, will
have good title to the property additions made the basis of such
application, free and clear of any lien or encumbrance prior to the lien of
this Indenture, except prior liens securing prior xxxx xxxxx which have
ceased to be outstanding under the provisions of Section 6 hereof and
excepted encumbrances; and/or (b) if such property additions include
easements or rights of way over private property used for transmission
line, distribution line or other right of way purposes, that the Company
has good title to such rights of way or easements, free and clear of any
lien or encumbrance prior to the lien of this Indenture, except prior liens
securing prior xxxx xxxxx which have ceased to be outstanding under the
provisions of Section 6 hereof and excepted encumbrances, and that the
Company has power under eminent domain or similar statutes to protect its
uninterrupted enjoyment of such easements or rights of way against any
claim held or asserted under any lien or other encumbrance upon the real
estate with respect to which such easements or rights of way are held by
the Company; and/or (c) if such property additions include any property
additions located, under the terms of a law or a permit or franchise
granted by a governmental body, on property not owned by the Company, that
such law, permit or franchise is adequate for the operation of such
property additions by the Company for the period, if any, specified
therein, and that the terms of such law or of such permit or franchise or
the law under which such permit or franchise is held do not contain any
provisions giving to any party authority or right to take over such
property additions without the payment of fair consideration therefor; and
(d) that this Indenture is, or upon the delivery of the instruments of
conveyance, transfer or assignment, if any, specified in such opinion, will
be a lien upon all the right, title and interest of the Company in and to
all property additions made the basis of such application, free and clear
of any lien or encumbrance prior to the lien of this Indenture, except
prior liens securing prior xxxx xxxxx which have ceased to be outstanding
under the provisions of Section 6 hereof and excepted encumbrances; (e)
that since the date of this Indenture no lien prior to the lien of this
Indenture has attached to and remains unsatisfied upon any of the mortgaged
and pledged property except excepted encumbrances and except liens existing
upon any of the mortgaged and pledged property at the date it became
mortgaged and pledged property; (f) that in the signer's opinion the issue
of the bonds, the authentication and delivery of which are being applied
for has been duly authorized by the Company and by any and all governmental
authorities the consent of which is requisite to the legal issue of such
bonds, specifying any officially authenticated certificates or other
documents, by which such consent is or may be evidenced, or that no consent
of any governmental authorities is requisite; (g) that the general nature,
extent and amount of prior liens, and the principal amount of the then
outstanding prior xxxx xxxxx secured thereby, if any, mentioned in the
accompanying engineer's certificate, are correctly stated; (h) that the
Company has corporate authority and all necessary permission from
governmental authorities to own and operate the property additions in
respect of which such application is made; and (i) that the supplemental
indenture specified in subdivision (10) below is in proper form to comply
with the requirements of said subdivision (10);
(8) the instruments of conveyance, assignment and transfer, if any,
and the officially authenticated certificates or other documents, if any,
specified in the opinion of counsel provided for in subdivision (7) above;
(9) the prior xxxx xxxxx and/or the cash, if any, to he deposited with
the Trustee in accordance with the provisions of Section 28 hereof, as
specified in the engineer's certificate provided for in subdivision (3)
above; and
(10) an indenture supplemental hereto, with evidence that counterparts
thereof have been filed and spread of record in each county in which the
mortgaged and pledged property, or any part thereof, is situated (including
property additions shown by the engineer's certificate provided for in
subdivision (3) above), which supplemental indenture shall contain a
statement of the principal amount, the date, the maturity and a description
of the series of the bonds (other than the 1970 Series) to be authenticated
and delivered hereunder upon said application.
ARTICLE VII.
ISSUANCE OF BONDS UPON RETIREMENT OF BONDS PREVIOUSLY
OUTSTANDING HEREUNDER.
SECTION 31. The Trustee shall from time to time upon the request of the
Company authenticate and deliver bonds hereunder (other than bonds of the 1970
Series) of a principal amount equal to the principal amount of any bonds
theretofore authenticated and delivered under this Indenture that shall have
been paid, retired, redeemed or canceled or surrendered to the Trustee for
cancellation or for the purchase, payment or redemption of which moneys in the
necessary amount shall have been deposited with or shall then be held by the
Trustee, with irrevocable direction so to apply the same, but only after the
Trustee shall have received:
(1) a resolution such as is described in subdivision (1) of Section 30
hereof;
(2) a Treasurer's certificate stating (a) that the Company is not to
the knowledge of the signers in default under any of the provisions of this
Indenture; and (b) that bonds theretofore authenticated and delivered under
this Indenture of a specified principal amount and series (not less than
the principal amount of bonds for which such request for authentication and
delivery is made under this Section) have been paid, retired, redeemed or
canceled or concurrently with the authentication and delivery of the bonds
requested will be surrendered to the Trustee for cancellation (otherwise
than upon exchanges or transfers of bonds) and/or that moneys in the
necessary amount for the purchase, retirement, payment or redemption
thereof are then held by or will be deposited (with irrevocable direction
so to apply the same) with the Trustee prior to or concurrently with the
authentication and delivery of the bonds so requested, and further stating
that no part of such principal amount of bonds has been theretofore made
the basis under any provision of this Indenture for the authentication and
delivery of bonds or the basis of the right to the authentication and
delivery of bonds which right has been waived or the basis of a credit
under subdivision (d) of Section 41 or deposited under the provisions of
Section 20 hereof and that none of such bonds has been paid, purchased,
redeemed or otherwise retired by the use of funded cash, and further
stating the aggregate principal amount of all such bonds cancelled or so to
be surrendered for cancellation that have not theretofore been issued by
the Company and the interest rate borne by each thereof not so issued;
(3) an opinion of counsel stating the signer's opinion to the effect
(a) that since the date of this Indenture no lien prior to the lien of this
Indenture has attached to and remains unsatisfied upon any of the mortgaged
and pledged property except excepted encumbrances and except liens existing
upon any of the mortgaged and pledged property at the date it became
mortgaged and pledged property; (b) that the issue of the bonds, the
authentication and delivery of which are requested in the resolution
provided for under subdivision (1) of this Section, has been duly
authorized by the Company and by any and all governmental authorities, the
consent of which is requisite to the legal issue of such bonds, specifying
any officially authenticated certificates or other documents by which such
consent is or may be evidenced, or that no consent of any governmental
authorities is requisite; and (c) that the supplemental indenture specified
in subdivision (5) below is in proper form to comply with the requirements
of subdivision (10) of Section 30 hereof;
(4) the officially authenticated certificates, or other documents, if
any, specified in the opinion of counsel provided for in subdivision (3) of
this Section; and
(5) an indenture supplemental hereto, together with evidence of
recordation, such as is described in subdivision (10) of Section 30 hereof.
In case a net earnings certificate, subsequent to such payment, retirement,
redemption, cancellation or surrender for cancellation of such bonds or such
deposit of money, shall have been delivered to the Trustee pursuant to any
provision of this Indenture, in which the annual interest requirements on such
bonds shall not have been included, or in case the interest rate borne by any
bonds theretofore authenticated by the Trustee but not issued by the Company
(which are being so canceled or surrendered for cancellation) shall have been
shown by the Treasurer's certificate provided for in subdivision (2) of this
Section to be less than the interest rate to be borne by the bonds the
authentication and delivery of which are applied for, the Trustee shall also
receive a net earnings certificate, showing the net earnings of the Company to
be as required by Section 29 hereof. Bonds issued merely by way of pledge shall
not be deemed to have been issued for the purposes of this Section.
Any and all coupon bonds delivered to the Trustee pursuant to this Article
shall have attached thereto all unmatured coupons appertaining thereto.
ARTICLE VIII.
ISSUANCE OF BONDS UPON DEPOSIT OF CASH WITH TRUSTEE.
SECTION 32. The Trustee shall from time to time upon the request of the
Company authenticate and deliver bonds (other than bonds of the 1970 Series)
upon deposit with the Trustee by the Company of cash equal to the aggregate
principal amount of the bonds so requested to be authenticated and delivered but
only after the Trustee shall have received:
(1) a resolution such as is described in subdivision (1) of Section 30
hereof;
(2) a Treasurer's certificate stating that the Company is not to the
knowledge of the signers in default under any of the provisions of this
Indenture;
(3) a net earnings certificate showing the net earnings of the Company
to be as required by Section 29 hereof;
(4) an opinion of counsel to the effect (a) that since the date of
this Indenture no lien prior to the lien of this Indenture has attached to
and remains unsatisfied upon any of the mortgaged and pledged property
except excepted encumbrances and except liens existing upon any of the
mortgaged and pledged property at the date it became mortgaged and pledged
property; (b) that the issue of the bonds, the authentication and delivery
of which are requested in such resolution, has been duly authorized by the
Company and by any and all governmental authorities the consent of which is
requisite to the legal issue of such bonds, specifying any officially
authenticated certificates or other documents, by which such consent is or
may be evidenced, or that no consent of any governmental authorities is
requisite and (c) that the supplemental indenture specified in subdivision
(6) below is in proper form to comply with the requirements of subdivision
(10) of Section 30 hereof;
(5) the officially authenticated certificates, or other documents, if
any, specified in the opinion of counsel provided for in subdivision (4) of
this Section; and
(6) an indenture supplemental hereto, together with evidence of
recordation, such as is described in subdivision (10) of Section 30 hereof.
SECTION 33. All cash deposited with the Trustee under the provisions of the
next preceding Section hereof shall be held by the Trustee as a part of the
mortgaged and pledged property, but whenever, within three (3) years from the
date of deposit of such cash with the Trustee, the Company shall become entitled
to the authentication and delivery of bonds under any of the provisions of this
Indenture (other than those contained in the next preceding Section) the
Trustee, upon the application of the Company, evidenced by a resolution and upon
compliance by the Company with all the provisions of this Indenture (except as
hereinafter in this Section provided), with which it would have to comply to
obtain such authentication and delivery, shall pay over to the Company or upon
its order, in lieu of each bond or fraction thereof to the authentication and
delivery of which the Company shall then be so entitled, a sum in cash equal to
the principal amount of each such bond or fraction thereof; provided, however,
that for the purpose of withdrawing cash pursuant to the provisions of this
Section, it shall in no case be necessary for the Company to deliver to the
Trustee any resolution or document such as are described in subdivisions (1),
(6) and (10) of Section 30 hereof, or such parts of the opinion as are described
in clause (e) of subdivision (7) of said Section 30 or such parts of the opinion
described in subdivision (7) of said Section 30 as relate solely to the
authorization of the issuance of bonds by governmental authorities and by the
Company or to the supplemental indenture described in subdivision (10) of
Section 30, or to comply with the provisions of Section 29 hereof.
SECTION 34. If, at any time within three (3) years from the date of deposit
thereof with the Trustee, the Company shall so direct, any cash deposited with
the Trustee under the provisions of Section 32 hereof may be used or applied to
the purchase or redemption of bonds in the manner and subject to the conditions
provided in subdivisions (2) and (3) of Section 68 hereof.
Any cash deposited with the Trustee under the provisions of Section 32
hereof, which shall not have been paid out pursuant to Section 33 hereof or used
or applied pursuant to the foregoing provisions of this Section 34 within three
(3) years from the date of deposit thereof with the Trustee, shall be used or
applied by the Trustee (unless the Company is in default in the payment of
interest on any bonds then outstanding hereunder or one or more of the completed
defaults specified in Section 72 hereof shall have occurred and be continuing),
as promptly as the Trustee shall deem reasonable or desirable, to the purchase
or redemption of bonds in the manner provided in subdivisions (2) and (3) of
Section 68 hereof, except that (a) the Trustee, in its sole discretion, shall
determine whether and at what time or times bonds shall be purchased or
redeemed, (b) the request by the Company referred to in said subdivisions (2)
and (3) shall not be required, and (c) if more than one series of bonds issued
hereunder shall at the time be outstanding, the Trustee, in its sole discretion,
shall determine the amount of such cash which shall be so applied to the
purchase or redemption of the bonds of each such series. The Company hereby
authorizes the Trustee on its behalf to give notice of intention to redeem any
bonds which are to be redeemed pursuant to the foregoing provisions, in the
manner provided by Section 59 hereof.
The Company shall pay to the Trustee, on demand, the amount of accrued and
unpaid interest, and premiums paid, if any, upon all bonds purchased or redeemed
pursuant to this Section.
ARTICLE IX.
PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants as follows:
SECTION 35. That it is lawfully possessed of all the aforesaid mortgaged
and pledged property; that it will maintain and preserve the lien of this
Indenture so long as any of the bonds issued hereunder are outstanding; and that
it has good right and lawful authority to mortgage and pledge the mortgaged and
pledged property, as provided in and by this Indenture and that the mortgaged
and pledged property is free and clear of any deed of trust, mortgage, lien,
charge or encumbrance thereon or affecting the title thereto prior to this
Indenture other than as set forth in the granting clauses hereof and other than
excepted encumbrances.
SECTION 36. That it will duly and punctually pay the principal of and
interest, and premium, if any, on all the bonds outstanding hereunder, according
to the terms thereof. As the coupons appertaining to said bonds are paid they
shall be canceled.
SECTION 37. That it will keep an office or agency, while any of the bonds
issued hereunder are outstanding, at any and all places at which the principal
of or interest on any of said bonds shall be payable, where notices,
presentations and demands to or upon the Company in respect of such bonds or
coupons as may be payable at such places or in respect of this Indenture may be
given or made, and for the payment of the principal thereof and interest
thereon. The Company will from time to time give the Trustee written notice of
the location of such office or offices or agency or agencies, and in case the
Company shall fail to maintain such office or offices or agency or agencies or
to give the Trustee written notice of the location thereof, any such notice,
presentation or demand in respect of said bonds or coupons or of this Indenture
may be given or made, unless other provision is expressly made herein, to or
upon the Trustee at its principal office in the City of Chicago, Illinois, and
the Company hereby authorizes such presentation and demand to be made to and
such notice to be served on the Trustee in either of such events and the
principal of and interest on said bonds shall in such event be payable at said
office of the Trustee.
SECTION 38. (a) That, if the Company shall appoint a paying agent other
than the Trustee, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such paying agent shall agree with the Trustee,
subject to the provisions of this Section, (1) that such paying agent shall hold
in trust for the benefit of the bondholders or the Trustee all sums held by such
paying agent for the payment of the principal of or interest on the bonds and
premium, if any; and (2) that such paying agent shall give the Trustee notice of
any default by the Company in the making of any deposit with it for the payment
of the principal of or interest on the bonds and premium, if any, and of any
default by the Company in the making of any such payment. Such paying agent
shall not be obligated to segregate such sums from other funds of such paying
agent except to the extent required by law.
(b) That if the Company acts as its own paying agent it will, on or before
each due date of each instalment of principal or interest on the bonds set aside
and segregate and hold in trust for the benefit of the bondholders or the
Trustee a sum sufficient to pay such principal or interest so becoming due on
the bonds and premium, if any, and will notify the Trustee of such action or of
any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or any paying agent as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust, as provided in this Section, is subject to the provisions
of Section 130 hereof.
SECTION 39. That it will pay all taxes and assessments lawfully levied or
assessed upon the mortgaged and pledged property, or upon any part thereof or
upon any income therefrom or upon the interest of the Trustee in the mortgaged
and pledged property before the same shall become delinquent, and will duly
observe and conform to all valid requirements of any governmental authority
relative to any of the mortgaged and pledged property, and all covenants, terms
and conditions upon or under which any of the mortgaged and pledged property is
held; that it will not suffer any lien to be hereafter created upon the
mortgaged and pledged property, or any part thereof, or the income therefrom,
prior to the lien of these presents, other than excepted encumbrances, and, in
the case of property hereafter acquired, vendors' liens, purchase money
mortgages and any lien thereon at the time of the acquisition thereof, and that
within four months after the accruing of any lawful claims or demands for labor,
materials, supplies or other objects, which if unpaid might by law be given
precedence over the lien of this Indenture as a lien or charge upon any of the
mortgaged and pledged property or the income thereof, it will pay or cause to be
discharged or make adequate provision to satisfy and discharge the same;
provided, however, that nothing in this Section contained shall require the
Company to observe or conform to any requirement of governmental authority or to
cause to be paid or discharged, or to make provision for, any such lien or
charge, or to pay any such tax, assessment or governmental charge so long as the
validity thereof shall be contested in good faith and by appropriate legal
proceedings; and provided that such security for the payment of such lien,
charge or tax shall be given as the Trustee may require; and that, save as
aforesaid, it will not suffer any matter or thing whereby the lien hereof might
or could be impaired.
SECTION 40. That it will keep all the mortgaged and pledged property
insured against fire to the extent that property of similar character is usually
so insured by companies similarly situated and operating like properties, to a
reasonable amount, by reputable insurance companies, any loss, except as to
materials and supplies and except any particular loss less than Ten thousand
dollars ($10,000), to be made payable to the Trustee as its interest may appear,
or to the trustee or other holder of any mortgage or other lien constituting a
prior lien or a lien prior hereto, if the terms thereof require losses so to be
made payable; and if so requested in writing by the Trustee, it will, subject to
the requirements of any mortgage constituting a prior lien or a lien prior
hereto, once in each year cause policies for the fire insurance carried to be
delivered to the Trustee for examination or inspection, which policies shall be
returnable to the Company within sixty (60) days from the date of the delivery
to the Trustee, unless the Company shall then be in default in the payment of
interest or one or more of the completed defaults specified in Section 72 hereof
shall have occurred and be continuing. There shall be deposited with the Trustee
annually a detailed statement signed by the Treasurer or an Assistant Treasurer
of the Company of any fire insurance policies then outstanding and in force upon
the aforesaid property, or any part thereof, including the names of the
insurance companies which have issued the policies, and the maturities and
amounts thereof.
Any insurance moneys paid in respect of any particular loss of less than
$10,000 or for any other reason received by the Company and not by the Trustee
shall, subject to the requirements of any mortgage constituting a prior lien or
a lien prior hereto, be applied by the Company to the rebuilding or restoring of
the property destroyed or damaged or to the acquisition of other property
subject to the lien hereof. Any such moneys not so used at the end of twelve
months from the receipt thereof. shall be paid over to the Trustee.
All moneys paid to the Trustee by the Company in accordance with this
Section or received by the Trustee as proceeds of any insurance against loss or
damage by fire shall, subject to the requirements of any mortgage constituting a
prior lien or a lien prior hereto, be held by the Trustee and, subject as
aforesaid, shall be paid by it to the Company to reimburse the Company for an
equal amount spent in the rebuilding or restoring of the property destroyed or
damaged, upon receipt by the Trustee of a resolution requesting such
reimbursement and a Treasurer's certificate stating the amount so expended and
the nature of such restoring or rebuilding.
Any such moneys not so applied within eighteen (18) months after its
receipt by the Trustee, or in respect of which notice in writing of intention to
apply the same to the work of rebuilding or restoring then in progress and
uncompleted shall not have been given to the Trustee by the Company within such
eighteen (18) months, or which the Company shall at any time notify the Trustee
is not to be so applied, shall thereafter be withdrawn, used or applied in the
manner, to the extent and for the purposes and subject to the conditions
provided in Section 68 hereof.
SECTION 41. (I) That it will at all times make or cause to be made such
expenditures by means of repairs and maintenance and substitutions, renewals and
replacements of property or otherwise as shall be necessary to maintain the
mortgaged and pledged property as an operating system or systems in good repair,
working order and condition.
In furtherance but not in limitation thereof, the Company covenants that
while any bonds of the 1970 Series are outstanding it will, for the period
beginning May 1, 1940 and ending December 31, 1940 (such period for the purposes
of this Section being referred to as a calendar year), and for each calendar
year thereafter, pay to the Trustee on or before the first day of May next
succeeding the end of such calendar year, as and for a Maintenance and
Improvement Fund, a sum in cash equal to the sum of ten per centum (10%) of the
gross steam operating revenues of the Company and fifteen per centum (15%) of
the gross operating revenues (other than steam operating revenues) of the
Company for such calendar year less, however, to the extent that the Company
desires to include the same, the following credits against such Fund:
(a) All expenditures of the Company during such calendar year for
ordinary maintenance and repairs of the mortgaged and pledged property
which have not theretofore been made the basis of a credit under this
Section;
(b) Such amounts (which have not theretofore been made the basis of a
credit under this subdivision (b)) of all expenditures of the Company
subsequent to April 30, 1940 for property of the character of property
additions which has not theretofore been made the basis of the
authentication and delivery of bonds hereunder; provided, however, that any
such expenditures, set forth as the basis of a credit in the Treasurer's
certificate provided for in this Section, shall have been made with respect
to property additions constituting part of the mortgaged and pledged
property at the date of such Treasurer's certificate; and provided further,
that the aggregate of all amounts then and theretofore made the basis of a
credit under this subdivision (b) shall not exceed the aggregate of the
costs of all mortgaged and pledged property retired subsequent to April 30,
1940. Such costs shall be determined, both with respect to funded and
unfunded property, in the manner provided for the determination of costs in
connection with the deductions required by subdivision (II) of Section 4
hereof;
(c) An amount equal to one hundred forty-two and six-sevenths per
centum (142 6/7%) of the principal amount of each bond or fraction of a
bond to the authentication and delivery of which the Company would then be
entitled on the basis of property additions by virtue of compliance with
all applicable provisions of this Indenture (except as hereinafter in this
Section provided) relating to such authentication and delivery but which
have not been authenticated and delivered; and
(d) The principal amount of any outstanding bonds, with all unmatured
coupons, secured hereby, then surrendered to the Trustee, which bonds and
coupons shall forthwith be cancelled by the Trustee and, upon request of
the Company, the Trustee may cremate the same and deliver to the Company a
certificate of such cremation; and
(e) An amount equal to one hundred and forty-two and six-sevenths per
centum (142 6/7%) of such principal amount of bonds, the issue of which is
provided for in Section 23 hereof, as to which the Treasurer's certificate,
hereinafter in this Section provided for, shall state (i) that such bonds
have not been authenticated and delivered hereunder, (ii) that the right to
the authentication and delivery of such bonds has not been previously
waived, and (iii) that the Company elects to make such principal amount of
bonds the basis of a credit under this Section 41. Any such election of a
credit shall operate as a waiver by the Company of its tight to the
authentication and delivery of such bonds under Section 23 hereof, and such
bonds may not thereafter be authenticated and delivered hereunder.
On or before the first day of May next succeeding the end of each such
calendar year, the Company shall file with the Trustee a Treasurer's certificate
which shall state:
(1) The amount which is 10% of the gross steam operating revenues of
the Company during such year;
(2) The amount which is 15% of the gross operating revenues (other
than steam operating revenues) of the Company during such year;
(3) The sum of the amounts stated in the foregoing clauses (1) and
(2);
(4) If credit is desired under subdivision (a), the amount of
expenditures of the character described in subdivision (a) for which credit
is desired and that such amount has not theretofore been made the basis of
a credit under this Section;
(5) If credit is desired under subdivision (b), a statement showing
the amount of such credit and how the same has been calculated and stating
that such amount has not theretofore been made the basis of a credit under
subdivision (b) of this Section and that the property for which the
expenditures were made has not theretofore been made the basis of the
authentication and delivery of bonds hereunder;
(6) If credit is desired under subdivision (c), a statement showing
the amount of such credit together with the certificates, instruments and
opinions required to be delivered by this Section in connection with such a
credit;
(7) If credit is desired under subdivision (d), the principal amount
of bonds being surrendered as the basis of such credit;
(8) If credit is desired under subdivision (e), the amount of such
credit and the statements required under said subdivision (e);
(9) The amount, if any, set forth pursuant to clause (11) hereof in
the next previous Treasurer's certificate which shall have been filed by
the Company pursuant to the provisions of this Section except to the extent
that any credits included in such excess amount may have been made the
basis of the withdrawal of cash deposited under this Section 41;
(10) The aggregate of the amounts set forth in such Treasurer's
certificate pursuant to the foregoing clauses (4) to (9), inclusive;
(11) The amount, if any, by which the amount set forth in such
Treasurer's certificate pursuant to the foregoing clause (10) shall be in
excess of the amount stated in such Treasurer's certificate pursuant to the
foregoing clause (3);
(12) The amount, if any, by which the amount set forth in such
Treasurer's certificate pursuant to the foregoing clause (10) shall be less
than the amount stated in such Treasurer's certificate pursuant to the
foregoing clause (3);
The Company shall pay to the Trustee in cash on or before the said first
day of May the amount set forth in such Treasurer's certificate pursuant to the
foregoing clause (12). Any cash so deposited may be withdrawn on the basis of
credits of the character set forth in the foregoing subdivisions (a) to (e)
inclusive, to the extent that the same would be available as the basis of a
credit against the Company's obligation to deposit cash under this Section, and
shall be certified to the Trustee in the same manner as though such credits were
being made the basis of a credit against the Company's obligation to deposit
cash under this Section. Any credit so made the basis of withdrawal of cash
under this Section may not thereafter be made the basis of a credit of any kind
under this Section. Any cash so deposited may, in lieu of being withdrawn as
aforesaid, be applied to the purchase or redemption of bonds in the manner
provided for in subdivisions (2) and (3) of Section 68 hereof. Any cash not so
withdrawn or applied within three years from the date of receipt thereof by the
Trustee shall be applied by the Trustee to the purchase or redemption of bonds
outstanding hereunder in the manner provided by paragraph (II) of Section 68
hereof.
In case the Company shall, pursuant to the provisions of subdivision (b) of
this Section, elect to make expenditures with respect to any property additions
the basis of a credit, the Company shall deliver to the Trustee an opinion of
counsel to the effect that the property additions, with respect to which the
expenditures so certified were made, constituted at the date of the Treasurer's
certificate part of the mortgaged and pledged property.
In case the Company shall, pursuant to the provisions of subdivision (c) of
this Section, elect to avail of a credit based upon the right to the
authentication and delivery of bonds on the basis of property additions, the
Company shall comply with all applicable provisions of this Indenture relating
to such authentication and delivery; provided, however, that in no such case
shall the Company be required to deliver to the Trustee any resolution or
document such as is described in subdivisions (1), (2), (6) and (10) of Section
30 hereof or such parts of the opinion as are required by clause (e) of
subdivision (7) of said Section 30, or such parts of the opinions described in
subdivision (7) of said Section 30 as relate solely to the authorization of the
issuance of bonds of the Company by governmental authorities or by the Company
or to the supplemental indenture described in subdivision (10) of Section 30 or
to comply with the provisions of Section 29 hereof; and such election shall
operate as a waiver by the Company of the right thereafter to make such property
additions the basis for the authentication and delivery of bonds hereunder, and
such property additions shall have the status of funded property.
(II) The Company further covenants that it will, whenever requested in
writing by the Trustee, or by the holders of at least fifteen per centum (15%)
in principal amount of bonds then outstanding hereunder, but in no event more
often than once in every five (5) years, cause an inspection of the mortgaged
and pledged property to be made by an independent engineer.
Such independent engineer, within a reasonable time from the date of his or
their appointment, shall report to the Company and to the Trustee whether or not
the mortgaged and pledged property, as an operating system or systems, has been
maintained in good repair, working order and condition, and whether or not there
is any mortgaged and pledged property which should be classified as retired and
which has not been retired on the books of the Company. If such independent
engineer shall report that the mortgaged and pledged property, as an operating
system or systems, has not been so maintained, he or they shall state clearly in
such report the character and extent and estimated cost of making good such
deficiency and, if longer than one year, the time reasonably necessary to make
good such deficiency and, if he or they shall report that there is mortgaged and
pledged property which should be classified as retired and which has not been
retired on the books of the Company, such report shall briefly describe such
property and shall state the amount of such retirement. Such amount shall be
determined, both with respect to funded and unfunded property, in the manner
provided for the determination of the deductions required by subdivision (II) of
Section 4 hereof; provided, however, that with respect to any property additions
which shall not have been included in any engineer's certificate or independent
engineer's certificate theretofore furnished to the Trustee, the amount of such
retirement shall be the cost or fair value thereof (whichever shall be less) as
of the date of such report in the case of property additions which were not
funded property, and in the case of property additions which were funded
property as of the date they became funded property, in either case as
determined by the signers of such report. Said report shall be placed on file by
the Trustee and shall be open to inspection by any bondholder at any reasonable
time.
The Company shall, with all reasonable speed, do such maintenance work as
may be necessary to make good any such maintenance deficiency as shall have been
determined to exist as hereinabove provided at the time of the report of such
independent engineer, whereupon such independent engineer (or, in case of his
or their refusal or inability to act, some other independent engineer), shall
report in writing to the Trustee whether such deficiency has been made good.
Unless the Trustee shall be so advised in writing by such independent
engineer within one year from the date of the report of such independent
engineer, or such longer period as may be reported by such independent engineer
to be reasonably necessary for the purpose, that such deficiency has been made
good, the Company shall be deemed to be in default in the performance of one of
its covenants under this Indenture. In any proceeding based on such default,
said report or reports of such independent engineer shall be prima facie
evidence of the existence of the facts and conditions therein set forth.
The Company covenants that it will promptly retire on its books at the
amounts stated in said report, all property which said report states should be
retired.
All expenses incurred pursuant to this Section shall be borne by the
Company.
(III) For the purposes of this Section 41 and of Section 47, the term
"Gross Operating Revenues of the Company" as applied to steam operating revenues
and other operating revenues of the Company is hereby defined as the revenues
received by the Company from the sale of electric, steam and other public
utility service and the amounts received as rentals or fixed charges for the use
by others (or the use by the Company for the account of others) of generating
and transmission facilities owned by the Company (with all interdepartmental
items eliminated), and after deducting an amount equal to the cost to the
Company of electricity, steam or other public utility service products,
purchased for exchange or resale, and after deducting an amount equal to the
revenues from the operation of (or, at the option of the Company, the cost of
rentals paid by the Company for) electric, steam or other producing, generating,
transporting, transmitting or distributing properties leased from others, and
after deducting an amount equal to charges to the Company for transmission by
others of electricity and/or transportation by others of steam or other public
utility service products; provided, however, that any operating revenue of the
Company which is in controversy as a result of any litigation or which has been
impounded, shall be included in the Gross Operating Revenues of the Company for
the purpose of this computation, but only after, and in the year in which, any
such operating revenue in controversy or impounded is recovered or, at the
option of the Company, after, and in the year in which, it shall have been
finally determined that such operating revenues belong to the Company.
SECTION 42. That it will, subject to the provisions of Article XVII hereof,
at all times maintain its corporate existence and right to carry on business,
and, subject to the provisions hereof, will use its best efforts to maintain,
preserve and renew all the rights, powers, privileges and franchises owned by
it.
SECTION 43. That if it shall fail to perform any covenants contained in
Sections 39, 40, 41, 42, or 44 hereof, the Trustee may make advances to perform
the same in its behalf and shall make such advances if requested so to do by the
holders of not less than a majority in principal amount of the bonds then
outstanding hereunder and furnished with funds adequate for the purpose and also
adequate to pay any expense incurred in connection with such performance; the
Company shall at once repay to the Trustee all sums so advanced with interest at
the rate of five per centum (5%) per annum until paid, and all sums so advanced
with the interest thereon shall be secured hereby, having the benefit of the
lien hereby created in priority to the indebtedness evidenced by the bonds and
coupons issued hereunder, but no such advance shall be deemed to relieve the
Company from any default hereunder except that, to the extent that any such
advances by the Trustee shall be repaid by the Company, such advances shall be
deemed to have been payments of the Company as of the date of such repayment.
SECTION 44. That it will cause this Indenture to be promptly recorded and
filed in such manner and in such places as may be required by law in order to
fully preserve and protect the security of the bondholders and all rights of the
Trustee and will furnish to the Trustee:
(1) Promptly after the execution and delivery of this Indenture and of
each supplemental indenture, an opinion of counsel (who may be of counsel
for the Company) either stating that in the opinion of such counsel this
Indenture and all indentures supplemental hereto have been properly
recorded and filed so as to make effective the lien intended to be created
thereby and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to make such lien
effective, and
(2) At least annually after the execution and delivery of this
Indenture it will furnish to the Trustee an opinion of counsel (who may be
of counsel for the Company) either stating that in the opinion of such
counsel such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture and all indentures supplemental
hereto as is necessary to maintain the lien thereof, and reciting the
details of such action, or stating that in the opinion of such counsel no
such action is necessary to maintain such lieu. As used in clause (2) of
this Section, the term "annually" shall be deemed to mean once in each
calendar year following the calendar year 1940.
It shall be a compliance with clauses (1) and (2) of this Section if (a)
the opinion of counsel therein required to be delivered to the Trustee shall
state (i) that the indentures which may be the subject matter of any such
opinion have been received for recordation or filing or rerecording or refiling
in each jurisdiction in which in the opinion of such counsel they are
respectively required to be recorded or filed or rerecorded or refiled and (ii)
that, in the opinion of such counsel, no further action is necessary to make
effective the lien intended to be created by such indentures, and (b) such
opinion is delivered to the Trustee within such time, following the date of the
execution and delivery of the respective indentures which may be the subject
matter of such opinion, as shall be practicable, having due regard to the number
and distance of the jurisdictions in which the same are required to be recorded
or filed or rerecorded or refiled.
SECTION 45. That it will execute and deliver such further instruments and
do such further acts as may be necessary or proper to carry out more effectually
the purposes of this Indenture, and to make subject to the lien hereof any
property hereafter acquired and intended to be subject to the lien hereof, and
to transfer to any new trustee or trustees or co-trustee or co-trustees the
estate, powers, instruments or funds held in trust hereunder.
SECTION 46. That books of record and account will be kept, in which full,
true and correct entries will be made, of all dealings or transactions of, or in
relation to, the plants, properties, business and affairs of the Company, and
that all books, documents and vouchers relating to the plants, properties,
business and affairs of the Company shall at all reasonable times be open to the
inspection of such reputable accountant or other agent of recognized standing as
the Trustee may from time to time designate, and that the Company will bear all
expenses of any such inspection. Except as may be required pursuant to Sections
97 and 98 hereof, the Trustee shall be under no obligation to cause any such
inspection to be made unless requested so to do in writing by the holders of not
less than a majority in principal amount of the bonds then outstanding hereunder
and furnished with funds sufficient to pay all costs and expenses incurred or to
be incurred by it in or in connection with such inspection.
SECTION 47. That subsequent to December 31, 1939 and so long as any bonds
of the 1970 Series are outstanding, (except as hereinafter in this Section
otherwise provided) it will not have (a) declared or paid any dividends on its
capital stock of any class (other than dividends payable in shares of its
capital stock of any class), or (b) made any other distribution on any shares of
its capital stock of any class, or (c) purchased or redeemed any shares of its
capital stock of any class, in an amount which would exceed in the aggregate the
amount of its net income after December 31, 1939 available for dividends. The
amount of such net income shall be determined in accordance with good accounting
practice after all proper deductions, including (i) deduction for amortization
of debt discount and expense and of premiums paid in connection with the
redemption of funded debt, and (ii) expenditures and accruals for depreciation,
maintenance, repairs, renewals, replacements and substitutions of the Company's
property in the amounts shown by the Company's books, but in no event shall the
total deduction pursuant to this clause (ii) be less than the sum of ten per
centum (10%) of the gross steam operating revenues of the Company and fifteen
per centum (15%) of the gross operating revenues (other than steam operating
revenues) of the Company from December 31, 1939 to the date of determination of
such net income. In determining the amount of such net income, no charge or
credit to surplus of the following nature shall be included:
1. Surplus adjustments applicable to the period prior to January 1,
1940;
2. Charges directly to earned surplus to write-off unamortized
discount and expense applicable to any funded debt of the Company
outstanding at any time prior to May 1,1940, or unamortized premiums paid
in connection with the redemption of such funded debt;
3. Charges directly to earned surplus to write off unamortized
discount and expense applicable to any class of the capital stock of the
Company heretofore or hereafter outstanding or unamortized premiums in
connection with the redemption of any class of the capital stock of the
Company now or hereafter outstanding and subject to redemption;
4. Charges to earned surplus for the write-down or write-off of any
properties or investments of the Company which may be required by any rule,
regulation or order of any public authority having jurisdiction over the
accounts of the Company.
The restrictions and computations under the foregoing covenant, however,
shall not apply (i) to the declaration or payment of dividends upon any shares
of its capital stock of any class to an amount in the aggregate not in excess of
$1,107,155 or (ii) to the application to the purchase or redemption of any
shares of its capital stock of any class of amounts not to exceed in the
aggregate the net proceeds received by the Company from the sale of any shares
of its capital stock of any class subsequent to December 31, 1939.
The Company covenants that, so long as any of the bonds of the 1970 Series
are outstanding, each financial statement required by Section 52 hereof to be
filed with the Trustee will disclose, by footnote or otherwise, the amount
available at the date of such financial statement for dividends, distributions,
purchases and redemptions, pursuant to the provisions of this Section 47, and
the dividends, distributions, purchases, and redemptions, if any, of the
character referred to in this Section, paid or made during the year covered by
such financial statement.
The Company covenants that within fifteen (15) days after the date of the
declaration of any dividend, the making of any distribution on its capital stock
or the purchase or redemption of any of its capital stock, it will notify the
Trustee of such action and will deliver to the Trustee a Treasurer's certificate
to the effect that such action was not in violation of the provisions of this
Section.
SECTION 48. That it will not issue, or permit to be issued, any bonds
hereunder in any manner other than in accordance with the provisions of this
Indenture and that it will faithfully observe and perform all the conditions,
covenants and requirements of this Indenture and of all indentures supplemental
hereto and of the bonds issued hereunder.
SECTION 49. I. That it will not withdraw or permit the withdrawal of any
cash or purchase money obligations representing the proceeds of insurance on or
the release of or the taking by eminent domain of property subject to the lien
of this Indenture which shall have been deposited with the trustee of a prior
lien unless
(a) such cash is deposited with the Trustee hereunder to be withdrawn,
used or applied in the manner and subject to the conditions provided in
Section 68 hereof, except that any such cash representing proceeds of
insurance shall be applied in accordance with the provisions of Section 40
hereof; or
(b) the consent of the Trustee hereunder has been given to such
withdrawal, which consent shall be given by the Trustee (1) with respect to
any such cash representing proceeds of insurance upon compliance with the
provisions of Section 40 hereof, or (2) with respect to any other cash upon
compliance with the provisions of Section 68 hereof. Any cash with respect
to the withdrawal of which the Trustee shall have given its' consent in
accordance with the provisions of this subdivision (b) shall for all
purposes of this Indenture be deemed to have been originally deposited
hereunder and to have been withdrawn, used or applied under the provisions
of Section 40 or Section 68 hereof as the case may be; or,
(c) such cash is deposited with the trustee of another prior lien,
such cash to be subject to the restrictions as to withdrawal hereinabove
set forth; or
(d) such purchase money obligations are withdrawn for payment and the
cash received thereon is deposited with the trustee of such prior lien,
such cash to be subject to the restrictions as to withdrawal hereinabove
set forth.
II. That, upon the cancellation and discharge of any prior lien, it will
(a) cause the balance of any cash and purchase money obligations of
the character described in paragraph I of this Section which shall have
been deposited with the trustee of such prior lien and shall not
theretofore have been withdrawn or permitted to be withdrawn in accordance
with the provisions of said paragraph I to be deposited either (1) with the
Trustee to be held and applied in the same manner as though such cash and
purchase money obligations had originally been deposited with the Trustee
hereunder, or (2) With the trustee of another prior lien, such cash and
purchase money obligations to be subject to the restrictions as to
withdrawal hereinabove set forth; and
(b) cause any prior xxxx xxxxx then held by the trustee of such prior
lien to be cancelled.
III. That, so long as any prior lien continues to be a prior lien, the
Company will not permit prior xxxx xxxxx secured by such prior lien to be
increased unless the prior xxxx xxxxx representing such increase shall be
deposited with the Trustee to be held under the provisions of Article XI hereof.
ARTICLE X.
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 50. The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee between June 15 and June 30 and between December
15 and December 31 in each year beginning with the period between December 15
and December 31 in the year 1940, and at such other times as the Trustee may
request in writing, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company or of
its paying agents, as to the names and addresses of the holders of bonds
obtained since the date as of which the next previous list, if any, was
furnished. Any such list may be dated as of a date not more than fifteen days
prior to the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 51. (a) The Trustee shall preserve in as current a form as is
reasonably practicable all information as to the names and addresses of the
holders of the bonds outstanding under this Indenture (1) contained in the most
recent list furnished to it, as provided in Section 50 hereof (2) received by it
in the capacity of paying agent with respect to the principal of and interest on
the bonds outstanding under this Indenture, and (3) filed with it within the 2
preceding years pursuant to the provisions of paragraph (2) of subdivision (c)
of Section 53 hereof.
The Trustee may (1) destroy any information or portion thereof furnished to
it as provided in said Section 50 upon receipt of new information so furnished
to it in substitution therefor; (2) destroy any information received by it as
paying agent upon delivering to itself as Trustee, not earlier than 45 days
after an interest payment date of the bonds, a list containing the names and
addresses of the holders of bonds obtained from such information since the
delivery of the next previous list, if any; (3) destroy any list delivered to
itself as Trustee which was compiled from information received by it as paying
agent upon receipt of a new list so delivered; and (4) destroy any in formation
received by it pursuant to the provisions of paragraph (2) of subsection (c) of
said Section 53 but not until 2 years after such information has been filed with
it.
(b) In case three or more holders of such bonds (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a bond outstanding under
this Indenture for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of bonds with respect to their rights under this
Indenture or under the bonds, and is accompanied by a copy of the form of proxy
or other communication which such applicants propose to transmit, then the
Trustee shall within 5 business days after the receipt of such application, at
its election, either
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subdivision
(a) of this Section; or
(2) inform such applicants as to the approximate number of holders of
bonds whose names and addresses appear in the information preserved at the
time by the Trustee, in accordance with the provisions of subdivision (a)
of this Section, and as to the approximate cost of mailing to such
bondholders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each bondholder whose name and address appears in the information
preserved at the time by the Trustee, in accordance with the provisions of
subdivision (a) of this Section, a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment of, the reasonable expenses of such mailing, unless
within 5 days after such tender, the Trustee shall mail to such applicants and
file with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the holders
of bonds or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If said Commission, after opportunity
for a hearing upon objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections, or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for a hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such bondholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) The Trustee shall not be held accountable by reason of the mailing of
any material pursuant to any request made under subdivision (b) of this Section.
SECTION 52. The Company covenants and agrees
(1) To file with the Trustee, within 15 days after the Company is
required to file the same with the Securities and Exchange Commission,
copies of the annual reports, and of the information, documents and other
reports (or copies of such portions of any of the foregoing as such
Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with such Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
the Company is not required to file information, documents or reports,
pursuant to either of such Sections, then to file with the Trustee and the
Securities and Exchange Commission, in accordance with rules and
regulations prescribed from time to time by said Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) To file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations;
(3) To transmit to the holders of bonds outstanding under this
Indenture, within 30 days after the filing thereof with the Trustee (or at
such other time as shall be fixed by the Securities and Exchange
Commission) and in the manner and to the extent provided in subdivision (c)
of Section 53 hereof with respect to reports pursuant to subdivision (a) of
said Section, such summaries of any information, documents and reports
required to be filed by the Company, pursuant to subdivisions (1) and (2)
of this Section, as may be required by the rules and regulations prescribed
from time to time by the Securities and Exchange Commission; and
(4) If at any time hereafter the Company shall not be required to file
copies of its annual report with the Securities and Exchange Commission, to
file with the Trustee within one hundred twenty (120) days after the close
of each fiscal year a statement signed by the Treasurer of the Company and
an independent certified or public accountant showing its financial
condition and giving reasonably detailed information as to its assets and
liabilities and its earnings and operating expenses.
SECTION 53. (a) The Trustee shall transmit, within 60 days after May 15 in
each year, beginning with the year 1941, to the bondholders as hereinafter in
this Section provided a brief report dated as of such May 15 with respect to
(1) Its eligibility and its qualifications under Sections 96 and 109
hereof, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(2) The character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee, as such, which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge
prior to that of the bonds upon the mortgaged and pledged property, or upon
property or funds held or collected by it as Trustee, if such advances so
remaining unpaid aggregate more than one-half of one percentum (1/2 of 1%)
of the aggregate principal amount of bonds outstanding under this Indenture
on the date of such report;
(3) The amount, interest rate and maturity date of all other
indebtedness owing by the Company, or any other obligor on the bonds
secured hereby, to the Trustee in its individual capacity on the date of
such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraphs 2, 3, 4 or 6 of
subdivision (b) of Section 110 hereof;
(4) The property and funds physically in the possession of the
Trustee, as such Trustee, or of a depositary for it, on the date of such
report;
(5) Any release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration therefor, if any) which
it has not previously reported; provided, however, that to the extent that
the aggregate value as shown by the release papers of any or all of such
released properties does not exceed an amount equal to 1% of the principal
amount of bonds then outstanding, the report need only indicate the number
of such releases, the total value of property released as shown by the
release papers, the aggregate amount of cash received and the aggregate
value of property received in substitution therefor as shown by the release
papers;
(6) Any additional issue of bonds issued under this Indenture which it
has not previously reported; and
(7) Any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which, in its
opinion, materially affects the bonds outstanding under this Indenture, or
materially affects the mortgaged and pledged property, except action in
respect of a default, notice of which has been or is to be withheld by it,
in accordance with the provisions of Section 73.
(b) The Trustee shall transmit to the bondholders as hereinafter provided a
brief report with respect to--
(1) the release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration therefor, if any) unless
the fair value of such property, as set forth in the certificate or opinion
required by Sections 66 or 68 is less than 10 per centum of the principal
amount of bonds outstanding at the time of such release, or such release
and substitution, such report to be so transmitted within 90 days after
such time; and
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee as such since the date of the last report transmitted
pursuant to the provisions of subsection (a) of this Section 53 (or if no
such report has yet been so transmitted, since the date of execution of
this Indenture), for the reimbursement of which it claims or may claim a
lien or charge prior to that of the bonds on the mortgaged and pledged
property or on property or funds held or collected by it as Trustee, and
which it has not previously reported pursuant to this paragraph, if such
advances remaining unpaid at any time aggregate more than 10 per centum of
the principal amount of bonds outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports, pursuant to this Section, shall be transmitted by mail
(1) to all registered holders of bonds outstanding under this
Indenture as the names and addresses of such holders appear upon the
registration books of the Company;
(2) to such holders of bonds outstanding under this Indenture as have,
within the two (2) years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section, to each bondholder whose name and address is preserved at the time
by the Trustee, as provided in subdivision (a) of Section 51 hereof.
(d) A copy of each such report shall, at the time of such transmission to
the bondholders, be filed by the Trustee with each Stock Exchange upon which any
of the bonds are listed, and also with the Securities and Exchange Commission.
ARTICLE. XI.
CONCERNING PRIOR XXXX XXXXX DEPOSITED WITH TRUSTEE.
SECTION 54. Each prior xxxx xxxx in coupon form deposited with the Trustee
shall have all unmatured coupons attached when so deposited, or shall be
accompanied by evidence satisfactory to the Trustee (which may be a certificate
of the mortgagee or trustee under the prior lien securing the same) that the
discharge of the mortgage or other lien securing such prior xxxx xxxx may be
obtained without the production of any coupon or coupons that may be missing;
and each prior xxxx xxxx so deposited shall be uncanceled. Each prior xxxx xxxx
deposited hereunder shall be in bearer form or accompanied by appropriate
instruments of transfer; and the Trustee may cause any or all registered prior
xxxx xxxxx to be registered in its name as Trustee, or otherwise, or in the name
or names of its nominee or nominees.
SECTION 55. All prior xxxx xxxxx received by the Trustee for the purposes
of this Article XI shall be held by the Trustee, as part of the mortgaged and
pledged property and without impairment of the lien thereof, for the protection
and further security of the bonds issued hereunder. Except during the
continuance of a completed default specified in Section 72 of this Indenture, no
payment by way of interest or otherwise on any of the prior xxxx xxxxx held by
the Trustee shall be made or demanded and the coupons thereto appertaining as
they mature shall be canceled by the Trustee and delivered so canceled to the
Company, unless the Company shall, by an instrument in writing, signed by its
President or a Vice-President or its Treasurer or an Assistant Treasurer, and
delivered to the Trustee, elect, with respect to any of such prior xxxx xxxxx,
to have such payments made and demanded. In any event, except during the
continuance of a completed default as aforesaid, all moneys received by the
Trustee on account of the principal of or interest or premium on said prior xxxx
xxxxx (to the extent that a Treasurer's certificate delivered to the Trustee
shall state that such moneys do not represent the proceeds of insurance on, or
of the release of, or of the taking by eminent domain of, mortgaged and pledged
property, including the proceeds of and substitutes for any thereof), shall be
paid over by the Trustee to or upon the order of the Company signed as
aforesaid; provided that if and to the extent that such Treasurer's certificate
shall not state that such moneys do not represent the proceeds of insurance on,
or of the release of, or of the taking by eminent domain of, mortgaged and
pledged property, including the proceeds of and substitutes for any thereof, the
same shall be retained by the Trustee and held as part of the mortgaged and
pledged property, to be withdrawn, used or applied, in the manner, to the
extent, and for the purposes, and subject to the conditions provided in Section
68 hereof.
SECTION 56. Except during the continuance of a completed default specified
in Section 72 hereof, the Trustee, if so directed by an instrument in writing
signed by the President or a Vice- President or the Treasurer or an Assistant
Treasurer of the Company, shall cause any prior xxxx xxxxx held by it to be
canceled, and the obligation thereby evidenced to be satisfied and discharged,
provided that it shall have received notice from the trustee or other holder of
the prior lien securing the same that such trustee or other holder, on receipt
of the prior xxxx xxxxx held by the Trustee, will cause the prior lien to be
satisfied and discharged of record and, in such event, the Trustee shall
surrender any prior xxxx xxxxx held by it subject to this Article XI to the
trustee or other holder of the prior lien securing the same for cancellation;
provided that if all of the property subject to the prior lien securing prior
xxxx xxxxx deposited with the Trustee, shall have been released from the lien of
this Indenture, such prior xxxx xxxxx as shall thereupon cease to be prior xxxx
xxxxx shall be surrendered forthwith by the Trustee to the Company upon the
written order of its President or a Vice-President or its Treasurer or an
Assistant Treasurer.
SECTION 57. Upon the occurrence of any completed default specified in
Section 72 hereof, the Trustee may exercise any and all rights of a bondholder
with respect to the prior xxxx xxxxx then held by it or may take any other
action which shall in its judgment be desirable or necessary to avail of the
security created for such prior xxxx xxxxx by the prior liens securing the same.
The Trustee shall be reimbursed from the trust estate for all expenses by it
properly incurred by reason of any such action taken without negligence or bad
faith, with interest upon all such expenditures at the rate of five per centum
(5%) per annum; and the amount of such expenses and interest shall, until
repaid, constitute a lien upon the mortgaged and pledged property prior to the
lien of the bonds and coupons issued hereunder.
ARTICLE XII.
REDEMPTION OR PURCHASE OF BONDS.
SECTION 58. Such of the bonds of any series issued hereunder as are, by
their terms, redeemable before maturity may, at the option of the Company
evidenced by a resolution, be redeemed at such times, in such amounts and at
such prices as may he specified therein and in accordance with the provisions of
the three next succeeding Sections numbered from 59 to 61, both inclusive.
SECTION 59. In case of a redemption of a part only of any series of said
bonds, the particular serial numbers of the coupon bonds (including serial
numbers of coupon bonds reserved for fully registered bonds of such series) so
to be redeemed shall be selected by the Trustee by lot, according to such method
as it shall deem proper in its discretion. Notice of intention to redeem
(including in case a part only of the bonds of any particular series are to be
redeemed, the numbers of the bonds to be redeemed in whole or in part) shall be
given, by or on behalf of the Company, by publication in one daily newspaper
printed in the English language and published and of general circulation in the
Borough of Manhattan, The City of New York, and in one daily newspaper printed
in the English language and published and of general circulation in each other
city (if any) where the interest on or principal of the bonds to be redeemed is
payable, for such period of time before the date fixed for redemption as is
specified in Section 19 hereof as to bonds of the 1970 Series and as to the
bonds of any other series for such periods as may be fixed for the bonds of such
other series by the supplemental indenture establishing such series of bonds, or
if no such period be fixed, then at least once in each of four (4) successive
calendar weeks (on any secular day of such calendar week which need not be the
same day in each week) immediately preceding the date fixed for redemption. A
copy of such notice shall also be mailed by or on behalf of the Company, not
less than twenty (20) days before the date fixed for redemption, to each holder
of any fully registered bond or of any coupon bond registered as to principal
which is to be redeemed, at his last address, if any, appearing upon the
registry books, but such mailing shall not be a condition precedent to such
redemption and failure so to mail any such notice shall not affect the validity
of the proceedings for the redemption of such bonds.
SECTION 60. In the event that the Company shall complete the giving of
notice by publication of its intention to redeem any bonds so redeemable, the
Company shall, and it hereby covenants that it will, on or before the redemption
date specified in such notice, deposit with the Trustee a sum of money
sufficient to redeem all such bonds so to be redeemed on such date and/or
irrevocably direct the Trustee to apply from money held by it available to be
used for the redemption of bonds, a sum of money sufficient to redeem such
bonds. If the Company shall fail so to deposit or direct the application of the
money for the redemption of said bonds and such failure shall continue for a
period of ten days after the redemption date, such failure, so continued, shall
constitute a completed default under this Indenture and the said bonds so called
for redemption shall thereupon immediately become due and payable, and the
holders of said bonds shall be entitled to receive and the Company shall be
obligated to pay the redemption price of said bonds and thereupon and without
the lapse of any period of time all the remedies provided for in Article XIV
hereof with respect to a default in the payment of principal of bonds
outstanding hereunder shall be available to and enforceable by the Trustee.
SECTION 61. All moneys deposited by the Company with the Trustee under the
provisions of this Article XII for the redemption of bonds or which the Company
directs shall be applied by the Trustee to the redemption of bonds shall,
subject to the provisions of Section 130 hereof, be held by the Trustee in trust
for account of the holders of the bonds so to be redeemed, and shall be paid to
them respectively, upon presentation and surrender of said bonds in bearer form
or if registered, accompanied by a written instrument of transfer in form
approved by the Company duly executed by the registered holder or by his duly
authorized attorney, with all unmatured coupons, if any, appertaining thereto.
Coupons maturing on or prior to the redemption date shall remain payable in
accordance with their terms. On and after such redemption date, if the moneys
for the redemption of the bonds to be redeemed shall have been deposited or
directed to be applied as aforesaid, such bonds shall cease to bear interest and
the coupons for interest, if any, maturing subsequent to the redemption date
shall be void.
If any serial number shall be drawn by the Trustee at any selection by lot
as in Section 59 hereof provided for, which is reserved for any fully registered
bond of a denomination larger than One thousand dollars ($1,000), such fully
registered bond shall be presented properly endorsed for transfer at or after
the date fixed for the redemption of said bonds so drawn for redemption, and the
payment with respect to said bond shall be made upon surrender of said bond so
endorsed; and coupon bonds or fully registered bonds for the unpaid balance, if
any, of the principal amount of the fully registered bond so presented and
surrendered shall be executed by the Company and authenticated and delivered by
the Trustee without charge therefor. On and after the date fixed for such
redemption, interest shall be payable only on the portion of said fully
registered bond not so called for redemption and only such portion shall
continue to be entitled to the benefit of the lien of this Indenture.
SECTION 62. At any time, upon the request of the Company, expressed by
resolution, the Trustee shall, to the extent that such bonds are available for
such purchase, apply all or any part of the cash held by it under any provision
of this Indenture (except cash deposited under the provisions of Section 20
hereof or under any like devices for the retirement of bonds and except moneys
deposited for the payment or redemption of a particular series of bonds) or any
cash deposited with it by the Company for the purpose, to the purchase of bonds
then outstanding hereunder of such series as the Company may designate. Such
purchase shall be at public or private sale, as the Trustee may determine, at
the lowest prices at which such bonds can be obtained, not exceeding the current
redemption price of such bonds as shall be by their terms redeemable before
maturity, or at not more than one hundred and five per centum (105%) of the
principal of bonds not so redeemable, plus accrued interest. The Company shall
have the right to tender bonds for sale by it to the Trustee under the
provisions of this Section. Before making any such purchase the Trustee may, and
upon request of the Company, shall, by notice published once in each of two (2)
successive calendar weeks (on any secular day in the week which need not be the
same day in each week) in one daily newspaper, printed in the English language
and published and of general circulation in the Borough of Manhattan, The City
of New York, advertise for written proposals (to be received by it on or before
a specified date) to sell to it on or before a subsequent specified date bonds
of the series designated by the Company then outstanding hereunder; and the
Trustee, to the extent, as nearly as is possible, of such funds then in its
hands and requested by the Company to be so applied, shall purchase the bonds so
offered at the price or prices most favorable to the Company, and reasonable
notice shall be mailed by the Trustee to the holder or holders of the bonds
whose proposals may be accepted. Should there be two or more proposals at the
same price aggregating more than the amount which the Trustee has available for
investment, after having accepted all proposals at lower prices, the Trustee
shall invest the amount so available, by acceptance of proposals so as to
acquire the requisite amount of bonds at the lowest cost possible, provided,
however, that to the extent consistent with the acquisition of such amount of
bonds at the lowest cost possible the Trustee shall (a) in accepting proposals,
give preference to such proposals as are subject to acceptance of a portion
thereof as against proposals not subject to such acceptance, (b) as between
proposals subject to acceptance of a portion thereof, accept the same pro rata,
and (c) as between proposals not subject to such acceptance, select by lot,
according to such method as the Trustee shall deem proper in its discretion, the
proposals to be accepted. The Trustee may also in its discretion, and upon
request of the Company so to do, shall invite offers of bonds for sale to it in
any other usual manner. The Trustee may reject any or all proposals in whole or
in part if it can at the time of opening said proposals purchase the requisite
amount of such bonds or any part thereof from the Company or others at a lower
price than it could by accepting said proposals. All offers by holders shall be
subject to acceptance of a portion thereof unless otherwise expressed in the
offers and all advertisements for written proposals shall so state.
The Company shall pay to the Trustee, on demand, the amount of accrued and
unpaid interest upon all bonds purchased pursuant to this Section or redeemed in
the manner and as provided in this Article XII.
SECTION 63. All bonds issued hereunder paid, retired or redeemed under any
of the provisions of this Indenture or purchased by the Trustee as provided in
Section 62 hereof and all appurtenant coupons, if any, shall forthwith be
canceled by the Trustee, and at the request of the Company the Trustee may
cremate the same and deliver to the Company a certificate of such cremation.
ARTICLE XIII.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY.
SECTION 64. Unless the Company is in default in the payment of the interest
on any of the bonds then outstanding hereunder or one or more of the completed
defaults specified in Section 72 hereof shall have occurred and be continuing,
the Company shall be suffered and permitted to possess, use and enjoy the
mortgaged and pledged property (except such cash as is expressly required to be
deposited with the Trustee and except, to the extent not herein otherwise
provided, such securities as are expressly required to be deposited with the
Trustee), and to receive, use and dispose of the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, with power in the ordinary course
of business freely and without let or hindrance on the part of the Trustee or of
the bondholders, to use, consume and dispose of supplies acquired for the
purpose and except as herein otherwise expressly provided, to the contrary, to
exercise any and all rights under choses in action, contracts, franchises and
claims.
SECTION 65. Unless the Company is in default in the payment of the interest
on any of the bonds then outstanding hereunder or one or more of the completed
defaults specified in Section 72 hereof shall have occurred and be continuing,
the Company may at any time and from time to time, without any release or
consent by the Trustee, or accountability thereto for any consideration received
by the Company:
(1) sell or otherwise dispose of, free from the lien of this Indenture
any machinery, equipment, tools, implements or other property, which shall
have become old, inadequate, obsolete, worn out or unfit or unadapted for
use in the operations of the Company, upon replacing the same by or
substituting for the same other property (not then within the term funded
property) of at least equal value to that of the property sold or otherwise
disposed of and subject to no liens prior hereto except liens to which the
property sold or otherwise disposed of was subject;
(2) cancel or make changes or alterations in or substitutions of any
and all contracts, leases and/or right of way grants;
(3) surrender or assent to the modification of any right, power,
franchise, license, governmental consent or permit under which it may be
operating, provided that such surrender or modification is, in the opinion
of the Board of Directors of the Company (such opinion to be stated in a
resolution to be filed with the Trustee), desirable in the conduct of the
business of the Company and does not impair the security of the bonds
outstanding hereunder.
SECTION 66. A. Unless the Company is in default in the payment of the
interest on any bonds then outstanding hereunder or one or more of the completed
defaults specified in Section 72 hereof shall have occurred and be continuing,
the Company may obtain the release of any of the mortgaged and pledged property,
except cash then held by the Trustee (provided, however, that prior xxxx xxxxx
deposited with the Trustee shall not be released except as provided in Article
XI hereof, and that, at the option of the Company, the mining properties and the
land and buildings located at West Tenth Street and White River Boulevard,
Indianapolis, Indiana, owned by the Company at the date hereof may be released
as provided hereafter in paragraph B of this Section 66), and the Trustee shall
release the same from the lien hereof upon the application of the Company and
receipt by the Trustee of
(1) a resolution describing in reasonable detail the property to be
released and requesting such release and stating that the Company has
disposed of, exchanged or dedicated, or agreed to dispose of, exchange or
dedicate the same;
(2) a Treasurer's certificate stating that the Company is not in
default in the payment of the interest on any bonds then outstanding
hereunder and that none of the completed defaults specified in Section 72
hereof has occurred and is continuing;
(3) if the fair value of the property to be released, as set forth in
the certificate required by this subdivision (3), is equal to or more than
the greater of (i) Twenty-five thousand Dollars ($25,000) or (ii) one per
centum (1%) of the aggregate principal amount of the bonds outstanding, and
if the fair value of the property to be released and of all other property
released since the commencement of the current calendar year, as set forth
in the certificates required by this subdivision (3), is ten per centum or
more of the aggregate principal amount of bonds at the time outstanding,
then an independent engineer's certificate; otherwise an engineer's
certificate; such engineer's certificate or independent engineer's
certificate, as the case may be, shall be made and dated not more than
ninety (90) days prior to the date of such application and shall state: (a)
the fair value, in the opinion of the signers, of the property to be
released; (b) what portion, if any, of the property to be released is
funded property; (c) that such release is in the opinion of the signers
desirable in the conduct of the business of the Company; and (d) that such
release will not impair the security under this Indenture in contravention
of the provisions hereof;
(4) an amount in cash, to be held by the Trustee as part of the
mortgaged and pledged property, equivalent to the amount, if any, by which
the then fair value of the property to be released, as' specified in the
engineer's certificate or in the independent engineer's certificate, as
the case may be, provided for in subdivision (3) above, exceeds the
aggregate (subject to the limitations hereinafter contained in clause (c)
of this subdivision with respect to obligations secured by purchase money
mortgages upon the property released) of the following items:
(a) the principal amount of any obligations secured by purchase
money mortgage upon the property released delivered to the Trustee, to
be held as part of the mortgaged and pledged property; and
(b) one hundred and forty-two and six-sevenths per centum (142
6/7%) of the principal amount of each bond or fraction of a bond to
the authentication and delivery of which the Company shall be entitled
under any of the provisions of this Indenture (other than those
contained in Section 32 hereof and except that against bonds
authenticable under Section 31 hereof, credit may be taken under this
subdivision in an amount equal only to one hundred per centum (100%)
of the principal amount of such bonds) by virtue of compliance with
all applicable provisions of this Indenture (except any earnings
requirements or net earnings certificates) relating to such
authentication and delivery but which have not been authenticated and
delivered; provided, however, that any application for such release of
property shall, to the extent, and to the extent only, that the
property so to be released is (i) funded property, or (ii) property
the expenditures for which have been made the basis of a credit under
Section 41 hereof, operate as a waiver by the Company of the right to
the authentication and delivery of each such bond or fraction thereof
on the basis of which right such property is released; and to such
extent no such bond or fraction thereof may thereafter be
authenticated and delivered hereunder and, to such extent, any
property additions which were the basis of such right to the
authentication and delivery of bonds so waived shall have the status
of funded property; and
(c) the principal amount of any obligations secured by purchase
money mortgage upon the property to be released and/or any amount in
cash, that is evidenced to the Trustee by a certificate of the trustee
or other holder of a prior lien or a lien prior hereto, as the case
may be, stating that such trustee or other holder has received and
holds the same in accordance with the provisions of such prior lien or
lien prior hereto in consideration for the release of such property or
any part thereof from such prior lien or lien prior hereto;
provided, however, that for the purposes of this subdivision (4)
obligations secured by purchase money mortgages upon the property to be
released shall be included in determining such aggregate only to the extent
of a sum which shall not exceed seventy per centum (70%) of the fair value
of the property released and only if the principal amount of the purchase
money obligations so included plus the principal amount of all purchase
money obligations then held by the Trustee or by the trustee or other
holder of a prior lien or lien prior hereto under the provisions of this
subdivision (4) and theretofore included in making the computation herein
provided for shall not exceed five per centum (5%) of the principal amount
of all bonds then outstanding under this Indenture;
(5) in case any obligations secured by purchase money mortgage upon
the property to be released are included in the consideration for such
release and are delivered to the Trustee or to the trustee or other holder
of a prior lien or a lien prior hereto in connection with any release of
such property, an opinion of counsel to the effect that in his or their
opinion, such obligations are valid obligations, and that any purchase
money mortgage securing the same is sufficient to afford a valid purchase
money lien upon the property to be released, subject to no lien prior
thereto except such liens, if any, as shall have existed thereon just prior
to such release as liens prior to the lien of this Indenture.
In case the release of property is in whole or in part, based upon the
right to the authentication and delivery of bonds (as permitted under clause (4)
(b) of this Section) the Company, except as otherwise in this Section provided,
shall comply with all applicable provisions of this Indenture relating to such
authentication and delivery; provided, however, that in no such case shall the
Company be required to deliver to the Trustee any resolution or document such as
is described in subdivisions (1), (2), (6) and (10) of Section 30 hereof or such
parts of the opinion as are described in clause (e) of subdivision (7) of said
Section 30 or such parts of the opinions described in subdivision (7) of said
Section 30 as relate solely to the authorization of the issuance of bonds of the
Company by governmental authorities or by the Company or to the supplemental
indenture described in subdivision (10) of Section 30, or to comply with the
provisions of Section 29 hereof; and provided further, that if the property to
be released is not funded property (i) the Company shall not be required to
comply with the provisions of Section 28 hereof, and (ii) that portion of the
opinion of counsel required by, clause (d) of subdivision (7) of said Section 30
may state that the property additions made the basis of the application for
release are subject to prior liens which secure prior xxxx xxxxx which have not
ceased to be outstanding under the provisions of Section 6 hereof; and provided
further, that if any such application for release on the basis of property
additions shall not operate as a waiver by the Company of the right to the
authentication and delivery of bonds on the basis of such property additions,
then none of the computations set forth in subdivision (II) of Section 4 hereof
need be made and provided further that the cost of any property additions
received or to be received by the Company in whole or in part, as consideration
in exchange for the property to be released shall for all purposes of this
Indenture be deemed to be the amount stated in the engineer's certificate or in
the independent engineer's certificate, as the case may be, provided for in
subdivision (3) of this Section to be the fair value of the property to be
released (a) plus the amount of any cash or the fair value of any other
consideration to be stated in such engineer's certificate or independent
engineer's certificate, as the case may be, paid and/or delivered or to be paid
and/or delivered by the Company in connection with such exchange as additional
consideration for such property additions or (b) less the amount of any cash or
the fair value of any other consideration, which shall also be stated in such
engineer's certificate or independent engineer's certificate, as the case may
be, received or to be received by the Company in connection with such exchange
in addition to such property additions.
Any prior xxxx xxxxx deposited with the Trustee pursuant to the provisions
of this Section shall be held by the Trustee subject to the provisions of
Article XI hereof and any moneys and/or purchase money obligations and/or other
property and/or the proceeds of any thereof and/or substitutes therefor received
by the Trustee under this Section shall be held as part of the mortgaged and
pledged property and such moneys and/or purchase money obligations shall be paid
over, with drawn, used or applied, in the manner, to the extent, and for the
purposes and subject to the conditions provided in Section 68 hereof.
B. Unless the Company is in default in the payment of the interest on any
bonds then outstanding hereunder or one or more of the completed defaults
specified in Section 72 hereof shall have occurred and be continuing, the
Company may obtain the release, as a whole, of the coal mining properties
located in Xxxxxxxx County, Indiana described in Part II of the granting clauses
hereof and/or of the coal mining properties located in Pike County, Indiana
described in Part III of the granting clauses hereof, and/or the land and
buildings located at West Tenth Street and White River Boulevard, Indianapolis,
Indiana, and the Trustee shall release the same from the lien hereof upon the
application of the Company and receipt by the Trustee of
(i) a resolution describing in reasonable detail the property to be
released and requesting such release and stating that the Company has
disposed of or exchanged, or agreed to dispose of or exchange the same;
(ii) a Treasurer's certificate as described in clause (2) of this
Section; and
(iii) cash in the amount of $543,430.65 with respect to the coal
mining properties located in Xxxxxxxx County, Indiana, or cash in the
amount of $38,018.05 for the coal mining properties located in Pike County,
Indiana, or cash in the amount of $17,500 with respect to the land and
buildings located at West Tenth Street and White River Boulevard,
Indianapolis, Indiana, to be held by the Trustee as part of the mortgaged
and pledged property and to be paid over, withdrawn, used or applied, in
the manner, to the extent, and for the purposes and subject to the
conditions provided in Section 68 hereof.
SECTION 67. Unless the Company is in default in the payment of the interest
on any bonds then outstanding hereunder or one or more of the completed defaults
specified in Section 72 hereof shall have occurred and be continuing, the
Trustee shall whenever from time to time requested by the Company (such request
to be evidenced by a resolution) and without requiring compliance with any of
the provisions of Section 66 hereof, release from the lien hereof real estate
unimproved for use in the conduct of the business of the Company, and the
retention of which is, in the opinion of the Board of Directors of the Company,
no longer desirable in the conduct of the business of the Company, provided the
aggregate value of such real estate so released without such compliance in any
period of twelve (12) consecutive calendar months shall not exceed the sum of
Fifty thousand dollars ($50,000). Prior to the granting of any such release,
there shall be delivered to the Trustee an engineer's certificate (or an
independent engineer's certificate if an independent engineer's certificate
would be required under subdivision (3) of Section 66, if the release was being
applied for under Section 66) which shall state (a) the fair value in the
opinion of the signers of the property to be released, (b) what portion, if any,
of the property to be released is funded property, (c) that the release thereof
will not impair the security under this Indenture in contravention of the
provisions hereof, and (d) such other facts required to be known by the Trustee
as a condition precedent to action by it under this Section. The Company
covenants that it will deposit with the Trustee, to be dealt with in the manner
provided in Section 68 hereof, the consideration, if any, received by it upon
the sale or other disposition of any such real estate so released (to the extent
that the same shall not have been paid or delivered to the trustee or other
holder of a mortgage or other instrument constituting a prior lien or
constituting a lien prior to the lien of this Indenture in accordance with the
provisions thereof and a Treasurer's certificate to that effect shall have been
furnished to the Trustee).
SECTION 68. (I) Any money received in consideration of any release by the
Trustee under this Article XIII, including payment on account of the principal
of any obligations secured by purchase money mortgage so received, shall be paid
to and held by the Trustee; and, unless the Company is in default in the payment
of the interest on any bonds then outstanding hereunder or one or more of the
completed defaults specified in Section 72 hereof shall have occurred and be
continuing, such money and any other money which by the provisions hereof are to
be applied as in this Section provide4 (subject to the provisions of paragraph B
of Section 69 hereof),
(1) may be withdrawn from time to time by the Company in an amount
equal to one hundred and forty-two and six-sevenths per centum (142-6/7%)
of the principal amount of each bond or fraction of a bond to the
authentication and delivery of which the Company shall be entitled under
any of the provisions of this Indenture (other than those contained in
Section 32 hereof and except that against bonds authenticable under Section
31 hereof, money may be withdrawn under this subdivision in an amount equal
only to one hundred per centum (100%) of the principal amount of such
bonds) by virtue of compliance with all applicable provisions of this
Indenture (except any earnings requirements or net earnings certificates)
relating to such authentication and delivery but which have not been
authenticated and delivered; provided, however, that any request for such
withdrawal of money shall, to the extent, and to the extent only, that the
money to be so withdrawn is funded cash, operate as a waiver by the Company
of the right to the authentication and delivery of each such bond or
fraction thereof on the basis of which right such funded cash is withdrawn;
and to such extent no such bond or fraction thereof may thereafter be
authenticated and delivered hereunder and, to such extent, any property
additions which were the basis of such right to the authentication and
delivery of bonds so waived shall have the status of funded property; or
(2) may, upon the request of the Company, evidenced by a resolution
delivered to the Trustee, be used by the Trustee for the purchase of bonds
issued hereunder in accordance with the provisions of Section 62 hereof; or
(3) may, upon the request of the Company, evidenced by a resolution
delivered to the Trustee, be applied by the Trustee to the redemption of
any bonds issued hereunder as are by their terms redeemable before
maturity, of such series as may be designated by the Company, such
redemption to be in the manner and as provided in Article XII hereof.
Such moneys shall, from time to time, be paid out or used or applied by the
Trustee, as aforesaid, upon the request of the Company evidenced by a
resolution, and upon receipt by the Trustee of a Treasurer's certificate stating
that the Company is not in default in the payment of the interest on any bonds
then outstanding hereunder and that none of the completed defaults specified in
Section 72 hereof has occurred and is continuing. In case the withdrawal of cash
is, in whole or in part, based upon the right to the authentication and delivery
of bonds (as permitted under subdivision (1) of this Section) the Company,
except as otherwise in this Section provided, shall comply with all applicable
provisions of this Indenture relating to such authentication and delivery;
provided, however, that in no such case shall the Company be required to deliver
to the Trustee any resolution or document such as is described in subdivisions
(1), (2), (6) and (10) of Section 30 hereof or such parts of the opinion as are
described in clause (e) of subdivision (7) of said Section 30 or such parts of
the opinion described in subdivision (7) of said Section 30 as relate solely to
the authorization of the issuance of bonds of the Company by governmental
authorities or by the Company or to the supplemental indenture described in
subdivision (10) of Section 30, or to comply with any earnings requirements and
provided further, that if the cash to be withdrawn is not funded cash (i) the
Company shall not be required to comply with the provisions of Section 28
hereof, and (ii) that portion of the opinion of counsel required by clause (d)
of subdivision (7) of said Section 30 may state that the property additions made
the basis of the application for the withdrawal are subject to prior liens which
secure prior xxxx xxxxx which have not ceased to be outstanding under the
provisions of Section 6 hereof; and provided further, that if any such
application for withdrawal of cash on the basis of property additions shall not
operate as a waiver by the Company of the right to the authentication and
delivery of bonds on the basis of such property additions, then none of the
computations set forth in subdivision (H) of Section 4 hereof need be made.
(II) Any such money which shall not have been withdrawn, used or applied
pursuant to the foregoing provisions of this Section within three (3) years from
the date of receipt thereof by the Trustee, shall be used or applied by the
Trustee (unless the Company is in default in the payment of interest on any
bonds then outstanding hereunder or one or more of the completed defaults
specified in Section 72 hereof shall have occurred and be continuing), as
promptly as the Trustee shall deem reasonable or desirable, to the purchase or
redemption of bonds in the manner provided in subdivisions (2) and (3) of
Section 68 hereof, except that (a) the Trustee, in its sole discretion, shall
determine whether and at what time or times bonds shall be purchased or
redeemed, (b) the request by the Company referred to in said subdivisions (2)
and (3) shall not be required, and (c) if more than one series of bonds issued
hereunder shall at the time be outstanding, the Trustee, in its sole discretion,
shall determine the amount of such cash which shall be so applied to the
purchase or redemption of the bonds of each such series. The Company hereby
authorizes the Trustee on its behalf to give notice of intention to redeem any
bonds which are to be redeemed pursuant to the foregoing provisions, in the
manner provided by Section 59 hereof.
Any purchase money mortgage received or to be received by the Trustee under
any of the provisions of this Indenture in consideration of the release of any
property by the Trustee and/or the obligations secured by such purchase money
mortgage, may be released upon payment by the Company to the Trustee of the
principal of such purchase money mortgage or any unpaid portion thereof and/or
of the obligations thereby secured. The Trustee shall be entitled to collect the
principal of and interest on any such purchase money mortgage, and/or of the
obligations thereby secured, as and when the same shall become payable and the
Trustee may take any action which in its judgment may be desirable or necessary
to avail of the security of such purchase money mortgage. Unless the Company is
in default in the payment of the interest on any of the bonds then outstanding
hereunder or one or more of the completed defaults specified in Section 72
hereof shall have occurred and be continuing, the interest received by the
Trustee on any such purchase money mortgage or on the obligations thereby
secured shall be paid over to the Company.
Any property acquired by the Company to take the place of any property
released under any provisions of this Article XIII shall forthwith and without
further conveyance become subject to the lien of and be covered by this
Indenture as a part of the mortgaged and pledged property; but the Company
shall, if requested by the Trustee, convey the same, or cause the same to be
conveyed, to the Trustee as may be so requested by appropriate instruments of
conveyance upon the trusts and for the purposes of this Indenture.
Any bonds issued under this Indenture deposited with the Trustee pursuant
to the provisions of this Section shall forthwith be canceled by the Trustee and
at the request of the Company the Trustee may cremate the same and deliver a
certificate of such cremation to the Company, and any prior xxxx xxxxx deposited
with the Trustee pursuant to the provisions of this Section shall be held by the
Trustee subject to the provisions of Article XI hereof.
SECTION 69. A. Should any of the mortgaged and pledged property be taken by
exercise of the power of eminent domain or should any governmental body or
agency, at any time, exercise any right which it may have to purchase or
designate a purchaser of any part of the mortgaged and pledged property, the
Trustee may release the property so taken or purchased, upon being furnished
with an opinion of counsel to the effect that such property has been taken by
exercise of the power of eminent domain, or purchased in the exercise of a right
which a governmental body or agent had to purchase or designate a purchaser of
the same. The proceeds of all property so taken or purchased shall be paid over
to the Trustee (unless the same shall have been paid or delivered to the trustee
or other holder of a mortgage or other lien constituting a prior lien or lien
prior hereto in accordance with the provisions thereof and a Treasurer's
certificate to that effect shall have been furnished to the Trustee), and, if
paid over to the Trustee hereunder, (a) shall be applied in the manner set forth
in paragraph B of this Section if the provisions of said paragraph B shall be
applicable, or (b) if the provisions of said paragraph B shall not be
applicable, shall thereafter be withdrawn, used or applied in the manner, to the
extent and for the purposes and subject to the conditions provided in Section 68
hereof.
B. Notwithstanding the provisions set forth in Sections 66 or 68 hereof or
in paragraph A of this Section relating to the withdrawal, use or application of
moneys or other proceeds paid over to the Trustee, which provisions shall be
inapplicable in the events hereinafter stated, should all or substantially all
of the mortgaged and pledged property, or all or substantially all such property
used in the business of generating, manufacturing, transporting, transmitting,
distributing or supplying electricity, be taken by exercise of the power of
eminent domain, or should any governmental body or agency exercise any right
which it may have to purchase or designate a purchaser of the same, or should
such property be sold to any governmental body or agency, then, and in any of
such events, the Company shall have the right to redeem and shall promptly take
all steps as shall be necessary to redeem all bonds outstanding under this
Indenture at the principal amounts thereof and accrued interest to the date of
redemption together with the premiums specified in Section 19 hereof with
respect to the bonds of the 1970 Series, and with such premiums, if any, as may
be provided, in the supplemental indenture establishing any other series of
bonds secured hereby, for the redemption of such bonds pursuant to the
provisions of this paragraph B. The Company covenants that in any of such events
it will deposit with the Trustee such an amount in cash, if any, as, when added
to any moneys then held by the Trustee hereunder, shall be required to redeem
all bonds outstanding under this Indenture, and the Trustee shall forthwith take
such steps as may be necessary to effect such redemption and shall apply and use
for such redemption the moneys so deposited with or held by it. If the Company
fails to take any steps necessary to effect the prompt redemption of said bonds,
the Trustee shall have the power in the name of the Company, or otherwise, to
take such steps. If in any of the events described in this paragraph B there
shall be deposited with the Trustee any moneys or other proceeds which are not
required for the redemption of the bonds outstanding hereunder, such cash shall
(subject to the Trustee's lien thereon for its charges, expenses and
disbursements) be forthwith paid over by the Trustee to the Company.
SECTION 70. In case the mortgaged property shall be in the possession of a
receiver or trustee, lawfully appointed, the powers hereinbefore conferred upon
the Company with respect to the sale or other disposition of the mortgaged and
pledged property may be exercised, with the approval of the Trustee, by such
receiver or trustee, notwithstanding the Company may be in default and any
request, certificate or appointment made or signed by such receiver or trustee
for such purposes shall be as effective as if made by the Company or its Board
of Directors or any of its officers or appointees in the manner herein provided;
and if the Trustee shall be in possession of the mortgaged and pledged property
under any provision of this Indenture, then such powers may be exercised by the
Trustee in its discretion notwithstanding the Company may be in default.
Notwithstanding the existence of a default in the payment of interest on any
bonds then outstanding hereunder or the existence of a completed default
specified in Section 72 hereof, the Trustee may release from the lien hereof any
part of the mortgaged and pledged property upon compliance with the conditions
specified in this Article in respect thereof, if the Trustee in its discretion
shall deem such release for the best interests of the bondholders.
SECTION 71. No purchaser in good faith of property purporting to have been
released hereunder shall be bound to ascertain the authority of the Trustee to
execute the release, or to inquire as to any facts required by the provisions
hereof for the exercise of this authority; nor shall any purchaser or grantee of
any property or rights permitted by this Article to be sold, granted, exchanged
or otherwise disposed of, be under obligation to ascertain or inquire into the
authority of the Company to make any such sale, grant, exchange or other
disposition.
ARTICLE XIV.
REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT.
SECTION 72. Upon the occurrence of any one or more of the following events
(herein called "completed defaults"), viz.:
(a) Default in the payment of the principal of any bond hereby secured
when the same shall have become due and payable, whether at maturity as
therein expressed or by declaration, or otherwise; or
(b) Default continued for sixty (60) days in the payment of any
interest upon any bond hereby secured; or
(c) Default in the payment of any interest upon or principal (whether
at maturity as therein expressed or by declaration, or otherwise) of any
outstanding prior xxxx xxxxx continued beyond the period of grace, if any,
specified in the prior lien securing the same if the Company shall not have
complied with the provisions of Section 49 hereof to the extent that such
provisions may be applicable thereto; or
(d) By decree of a court of competent jurisdiction the Company shall
be adjudicated a bankrupt, or an order shall be made approving a petition
filed by any creditors or stockholders of the Company seeking
reorganization or readjustment of the Company under the federal bankruptcy
laws or other law or statute of the United States of America or any State
thereof, or, by order of a court of competent jurisdiction, a trustee or a
receiver or receivers shall be appointed of all or substantially all of the
property of the Company or of all or any part of the property of the
Company subject to the lieu of this Indenture, and any such decree or order
shall have continued unstayed on appeal or otherwise and in effect for a
period of sixty (60) days; or
(e) The Company shall admit in writing its inability to pay its debts
generally as they mature or shall file a petition in voluntary bankruptcy
or shall make any general assignment for the benefit of creditors or shall
consent to the appointment of a receiver or trustee of all or any part of
its property, or shall file in any court of competent jurisdiction, a
petition or answer seeking reorganization or readjustment under the federal
bankruptcy laws or other law or statute of the United States of America or
any State thereof, or shall file a petition to take advantage of any
debtors' act; or
(f) Default continued for sixty (60) days after notice to the Company
from the Trustee in the performance of any other covenant, agreement or
condition contained herein or in any indenture supplemental hereto or in
any bond secured hereby;
the Trustee may, and upon written request of the holders of a majority in
principal amount of the bonds then outstanding hereunder, shall, by notice in
writing delivered to the Company, declare the principal of all bonds hereby
secured then outstanding and the interest accrued thereon immediately due and
payable, and such principal and interest shall thereupon become and be
immediately due and payable; subject, however, to the right of the holders of at
least a majority in principal amount of a1l outstanding bonds, by written notice
to the Company and to the Trustee to annul such declaration and destroy its
effect at any time before any sale hereunder, if before any such sale all
agreements with respect to which default shall have been made shall be fully
performed or made good, and all arrears of interest upon all bonds outstanding
hereunder and the reasonable expenses and charges of the Trustee, its agents and
attorneys, and all other indebtedness secured hereby, except the principal of
any bonds not then due by their terms and interest accrued on such bonds since
the last interest payment date, shall be paid, or the amount thereof shall be
paid to the Trustee for the benefit of those entitled thereto.
SECTION 73. The Trustee shall, within 90 days after the occurrence thereof,
give to the bondholders, in the manner and to the extent provided in subsection
(c) of Section 53 hereof, notice of all defaults known to the Trustee, unless
such defaults shall have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in subdivisions (a), (b), (c), (d), (e) and (f) of Section 72
hereof not including any periods of grace provided for in said subdivisions and
irrespective of whether the Trustee has given the notice referred to in said
subdivision (f)); and provided that, except in the case of default in the
payment of the principal of or interest on any of the bonds, or in the payment
of any sinking or purchase fund instalment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the bondholders.
SECTION 74. Upon the occurrence of one or more completed defaults, the
Company, upon demand of the Trustee, shall forthwith surrender to the Trustee
the actual possession of, and it shall be lawful for the Trustee, by such
officer or agent as it may appoint, to take possession of all the mortgaged and
pledged property (with the books, papers and accounts of the Company), and to
hold, operate and manage the same, and from time to time to make all needful
repairs and such extensions, additions and improvements as to the Trustee shall
seem wise; and to receive the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, and out of the same to pay all proper costs and
expenses of so taking, holding and managing the same, including reasonable
compensation to the Trustee, its agents and counsel, and any charges of the
Trustee hereunder, and any taxes and assessments and other charges prior to the
lien of this Indenture which the Trustee may deem it wise to pay, and all
expenses of such repairs, extensions, additions and improvements, and to apply
the remainder of the moneys so received by the Trustee, subject to the
provisions of Section 83 hereof with respect to extended, transferred or pledged
coupons or claims for interest, first to the payment of the instalments of
interest which are due and unpaid, in the order of their maturity, and next, if
the principal of any of said bonds is due, to the payment of the principal and
accrued interest thereon at the same rate as is expressed in the bonds pro rata
without any preference or priority whatever, except as' aforesaid. Whenever all
that is due upon such bonds and instalments of interest and under any of the
terms of this Indenture shall have been paid and all defaults made good, the
Trustee shall surrender possession to the Company, its successors or assigns;
the same right of entry, however, to exist upon any subsequent default.
SECTION 75. Upon the occurrence of one or more completed defaults it shall
be lawful for the Trustee, by such officer or agent as it may appoint, with or
without entry, to sell all the mortgaged and pledged property as an entirety, or
in such parcels as the holders of a majority in principal amount of the bonds
outstanding hereunder shall in writing request, or in the absence of such
request, as the Trustee may determine, at public auction, at some convenient
place in Indianapolis, Indiana, or such other place or places as may be required
by law, having first given notice of such sale by publication in at least one
daily newspaper of general circulation, published in Indianapolis, Indiana (if
there be such a daily newspaper), at least once in each of four (4) successive
calendar weeks (on any secular day of each such calendar week) next preceding
such sale, and by like publication in at least one daily newspaper published and
of general circulation in the Borough of Manhattan, The City of New York, and
any other notice which may be required by law, and from time to time to adjourn
such sale in its discretion by announcement at the time and place fixed for such
sale without further notice, and upon such sale to make and deliver to the
purchaser or purchasers a good and sufficient deed or deeds for the same, which
sale shall be a perpetual bar, both at law and in equity, against the Company
and all persons, firms and corporations lawfully claiming or who may claim by,
through or under it.
SECTION 76. In case of the breach of any of the covenants or conditions of
this Indenture, the Trustee shall have the right and power to take appropriate
judicial proceedings for the enforcement of its rights and the rights of the
bondholders hereunder. In case of a completed default hereunder, the Trustee may
either after entry, or without entry, proceed by suit or suits at law or in
equity to enforce payment of the bonds then outstanding hereunder and to
foreclose this Indenture and to sell the mortgaged and pledged property under
the judgment or decree of a court of competent jurisdiction; and it shall be
obligatory upon the Trustee to take action either by such proceedings or by the
exercise of its powers with respect to entry or sale upon being requested so to
do by the holders of a majority in principal amount of the bonds then
outstanding hereunder and upon being indemnified, except to the extent that such
indemnity is precluded under the provisions of Sections 97 and 98.
No remedy by the terms of this Indenture conferred upon or reserved to the
Trustee is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a
waiver of any such default or acquiescence therein; and every such right and
power may be exercised from time to time and as often as may be deemed
expedient.
No waiver of any default hereunder, whether by the Trustee or by the
bondholders, shall extend to or shall affect any subsequent default or shall
impair any rights or remedies consequent thereon.
In all proceedings for the foreclosure of this Indenture, reasonable
compensation for the services of the Trustee in case it shall act, and all costs
and expenses incurred without negligence or bad faith, including all expenses of
preparing for trial and trial, reasonable attorneys' fees, stenographer's fees
or reporter's fees or charges for taking or transcribing any statement of
witnesses or testimony or evidence given or heard therein, expenses of procuring
testimony and evidence, the cost of procuring abstracts of title and
continuations thereof, opinion of title or a title guarantee policy or policies
and documentary evidence, if any, and printing bills incurred by the Trustee in
any proceeding, or in the preparation therefor, shall become so much additional
indebtedness secured by this Indenture, prior and superior to the bonds secured
hereby and until the same are paid, such legal proceedings shall not be
dismissed.
SECTION 77. Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in principal amount of the bonds then outstanding
hereunder shall have the right, at any time, by an instrument in writing
executed and delivered to the Trustee, to direct the time, method and place of
conducting all proceedings to be taken for any sale of the mortgaged and pledged
property, or for the foreclosure of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder for any remedy available to the
Trustee, or for exercising any trust or power conferred upon the Trustee under
this Indenture; provided that such direction shall not be otherwise than in
accordance with the provisions of law and of this Indenture.
SECTION 78. In case of a completed default hereunder, and upon the filing
of a xxxx in equity, or other commencement of judicial proceedings to enforce
the rights of the Trustee and of the bondholders under this Indenture, the
Trustee shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the mortgaged and pledged property, and of the tolls,
rents, revenues, issues, earnings, income, products and profits thereof, pending
and/or during such proceedings, with such powers as the court making such
appointment shall confer.
SECTION 79. Upon any sale being made either under the power of sale hereby
given or under judgment or decree in any judicial proceedings for the
foreclosure or otherwise for the enforcement of this Indenture, the principal of
all bonds then secured hereby, if not previously due, shall at once become and
be immediately due and payable.
SECTION 80. Upon any sale made either under the power of sale hereby given
or under judgment or decree in any judicial proceedings for foreclosure or
otherwise for the enforcement of this Indenture, any bondholder or bondholders
may bid for and purchase the mortgaged and pledged property or any part thereof
and upon compliance with the terms of sale may hold, retain and possess and
dispose of such property in his, their or its own absolute right without further
accountability, and any purchasers at any such sale may, in paying the purchase
money, turn in any of the bonds and coupons or claims for interest outstanding
hereunder in lieu of cash to the amount which shall, upon distribution of the
net proceeds of such sale, be payable thereon, subject, however, to the
provisions in respect to extended, pledged and transferred coupons and claims
for interest contained in Section 83 hereof. Said bonds and coupons, in case the
amounts so payable thereon shall be less than the amount due thereon, shall be
returned to the holders thereof after being appropriately stamped to show
partial payment.
SECTION 81. Upon any sale made either under the power of sale hereby given
or under judgment or decree in any judicial proceedings for the foreclosure or
otherwise for the enforcement of this Indenture, the receipt of the Trustee or
of the officer making such sale shall be a sufficient discharge to the purchaser
or purchasers at any sale for his or their purchase money and such purchaser or
purchasers, his or their assigns or personal representatives, shall not, after
paying such purchase money and receiving such receipt of the Trustee or of such
officer therefor, be obliged to see to the application of such purchase money,
or be in any wise answerable for any loss, misapplication or non-application
thereof.
SECTION 82. Any sale made either under the power of sale hereby given or
under judgment or decree in any judicial proceedings for foreclosure or
otherwise for the enforcement of this Indenture, shall operate to divest all
right, title, interest, claim and demand whatsoever, either at law or in equity,
of the Company, of, in and to the property so sold, and shall be a perpetual bar
both at law and in equity against the Company, its successors and assigns and
against any and all persons, firms or corporations claiming or who may claim the
property sold or any part thereof, from, through or under the Company, its
successors or assigns.
SECTION 83. The proceeds of any sale made either under the power of sale
hereby given, or under judgment or decree in any judicial proceedings for the
foreclosure or otherwise for the enforcement of this Indenture, together with
any other amounts of cash which may then be held by the Trustee as part of the
mortgaged and pledged property, shall be applied, as follows:
First--To the payment of all taxes, assessments, governmental charges
or liens prior to the lien of this Indenture, except those subject to which
such sale shall have been made, and of all the costs and expenses of such
foreclosure and sale, including reasonable compensation to the Trustee, its
agents and attorneys, and of all other sums payable to the Trustee
hereunder as compensation for all other services and/or by reason of any
expenses or liabilities incurred or advances made in connection with the
management or administration of the trusts hereby created;
Second--To the payment in full of the amounts then due and unpaid for
principal and interest upon the bonds then secured hereby; and in case such
proceeds shall be insufficient to pay in full the amounts so due and
unpaid, then to the payment thereof ratably, with interest on the overdue
principal at the rates expressed in the bonds, without preference or
priority of principal over interest, or of interest over principal, or of
any instalment of interest over any other instalment of interest; provided,
however, that if the time for the payment of any coupon or claim for
interest upon any of the bonds secured hereby shall have been extended
(except pursuant to action taken under Article XX hereof) by or with the
consent of the Company, or if any thereof at or after maturity shall have
been transferred or pledged separate from the bond to which they relate,
such coupons or claims for interest shall not be entitled in case of
default hereunder to the benefit or security of this Indenture except after
the prior payment in full of the principal of all bonds issued hereunder
and then secured hereby and of all coupons and claims for interest on such
bonds the payment of which has not been so extended, or not so transferred
or pledged; but the foregoing proviso shall not be applicable to any coupon
or claim for interest, the time for the payment of. which shall have been
extended, if such extension be pursuant to a plan proposed by the Company
to all holders of any one or more series of bonds then outstanding and
accepted by or binding upon the holder of such coupon or claim for
interest;
Third--Any surplus thereof remaining to the Company, its successors or
assigns or to whosoever may be lawfully entitled to receive the same.
SECTION 84. In case of a default on its part, as aforesaid, neither the
Company nor any one claiming through or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation stay, extension or
redemption laws now or hereafter in force in any locality where any of the
mortgaged and pledged property may be situated, in order to prevent or hinder
the enforcement or foreclosure of this Indenture, or the absolute sale of the
mortgaged and pledged property, or the final and absolute putting into
possession thereof, immediately after such sale, of the purchaser or purchasers
thereat, but the Company, for itself and all who may claim through or under it,
hereby waives the benefit of all such laws and hereby waives all right of
appraisement and redemption to which it may be entitled under the laws of the
State of Indiana or of any other state where any of the mortgaged and pledged
property may be situated. And the Company, for itself and all who may claim
through or under it, waives any and all right to have the estates comprised in
the security intended to be created hereby marshaled upon any foreclosure of the
lien hereof, and agrees that any court having jurisdiction to foreclose such
lien may sell the mortgaged and pledged property as an entirety.
SECTION 85. The Company covenants that if default shall be made in the
payment of the principal of any bonds hereby secured when the same shall become
payable, whether by the maturity of said bonds or otherwise, then upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holders
of the bonds and coupons then secured hereby the whole amount due and payable on
all such bonds and coupons for principal and interest, with interest upon the
overdue principal at the same rate borne by the bonds which are overdue; and in
case the Company shall fail to pay the same forthwith upon such demand, the
Trustee in its own name and as trustee of an express trust shall be entitled to
xxx for and to recover judgment for the whole amount so due and unpaid.
The Trustee, to the extent permitted by law, shall be entitled to xxx and
recover judgment either before or after or during the pendency of any
proceedings for the enforcement of the lien of this Indenture upon the mortgaged
and pledged property, and in case of a sale of any of the mortgaged and pledged
property and of the application of the proceeds of sale to the payment of the
debt hereby secured, the Trustee in its own name and as trustee of an express
trust shall be entitled to enforce payment of and to receive all amounts then
remaining due and unpaid upon any and all of the bonds and coupons then
outstanding hereunder, for the benefit of the holders thereof, and the Trustee
shall be entitled to recover judgment for any portion of the debt remaining
unpaid, with interest. No recovery of any such judgment by the Trustee and no
levy of any execution upon any such judgment upon any of the mortgaged and
pledged property or upon any other property shall in any manner or to any extent
affect the lien of this Indenture upon the mortgaged and pledged property or any
part thereof, or any rights, powers or remedies of the Trustee hereunder, or any
lien, rights, powers or remedies of the holders of the said bonds, but such
lien, rights, powers and remedies of the Trustee and of the bondholders shall
continue unimpaired as before.
Any moneys thus collected or received by the Trustee under this Section
shall be applied by it first, to the payment of its expenses, disbursements and
compensation and the expenses, disbursements and compensation of its agents and
attorneys, and, second, toward payment of the amounts then due and unpaid upon
such bonds and coupons in respect of which such moneys shall have been
collected, ratably and without preference or priority of any kind (subject to
the provisions of Section 83 hereof with respect to extended, transferred or
pledged coupons and claims for interest) according to the amounts due and
payable upon such bonds and coupons, respectively, at the date fixed by the
Trustee for the distribution of such moneys, upon presentation of the several
bonds and coupons and upon stamping such payment thereon, if partially paid, and
upon surrender thereof, if fully paid.
In case of any reorganization, receivership, insolvency or bankruptcy
proceedings affecting the Company or its property the Trustee shall have power
to intervene and take any action therein that may be permitted by the Court and
shall be entitled to file and prove a claim for the entire amount due and
payable by the Company under this Indenture at the date of the institution of
such proceedings and for any additional amount which may become due and payable
by the Company hereunder after such date, without regard to or deduction for any
amount which may have been or which may thereafter be received, collected or
realized by the Trustee from or out of the mortgaged and pledged property or any
part thereof or from or out of the proceeds thereof or any part thereof.
The Trustee is hereby irrevocably appointed (and the successive respective
holders of bonds and coupons issued hereunder, by taking and holding the same,
shall be conclusively deemed to have so appointed the Trustee) the true and
lawful attorney-in-fact of the respective holders of the bonds and coupons
issued hereunder, with authority to make or file, irrespective of whether the
bonds or any of them are in default as to payment of principal or interest, in
the respective names of the holders of the bonds or coupons or in behalf of all
holders of the bonds or coupons as a class, any proof of debt, amendment to
proof of debt, petition or other document, and to do and perform any and all
acts and things for and in behalf of the respective holders of the bonds or
coupons as a class, as may be necessary or advisable, in the opinion of the
Trustee, in order to have the respective claims of the holders of the bonds or
coupons against the Company allowed in any equity receivership, insolvency,
liquidation, bankruptcy, reorganization or other similar proceedings to which
the Company shall be a party and to receive payment of or on account of such
claims; and any receiver, assignee or trustee in bankruptcy is hereby authorized
by each of the bondholders to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the bondholders, to pay to the Trustee any amount due it for compensation and
expenses, including counsel fees, incurred by it up to the date of such
distribution. Nothing herein contained shall be construed to authorize the
Trustee to accept any composition or plan of reorganization on behalf of
bondholders or to surrender any rights of bondholders.
SECTION 86. All rights of action (including the right to file proof of
claim) under this Indenture or under any of the bonds or coupons, may be
enforced by the Trustee without the possession of any of the bonds or coupons or
the production thereof on any trial or other proceeding relative thereto and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee and any recovery of judgment shall be for the equal benefit of the
holders of the outstanding bonds and coupons, subject to the provisions of
Section 83 hereof with respect to extended, transferred or pledged coupons and
claims for interest.
SECTION 87. No holders of any bond or coupon shall have any right to
institute any suit, action or proceeding in equity or at law for the foreclosure
of this Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless such holder
shall have previously given to the Trustee written notice of a completed
default, nor unless also the holders of twenty-five per centum (25%) in
principal amount of the bonds then outstanding hereunder shall have made written
request to the Trustee and shall have offered it reasonable opportunity either
to proceed to exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, nor unless also they shall have
offered to the Trustee adequate security and indemnity against the costs,
expenses and liabilities to be incurred therein or thereby; it being understood
and intended that no one or more holders of the bonds or coupons shall have any
right in any manner whatsoever to affect, disturb or prejudice the lien of this
Indenture by his or their action or to enforce any right hereunder except in the
manner herein provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal
benefit of all holders of outstanding bonds and coupons.
Notwithstanding the provisions of Section 88 or any other provision of this
Indenture or any indenture supplemental hereto, nothing in this Indenture or in
any such supplemental indenture contained shall affect or impair the right of
any bondholder, which is absolute and unconditional, to enforce the payment of
the principal of and interest on his bonds at and after the maturity thereof as
therein expressed or the obligation of the Company, which is also absolute and
unconditional, to pay the principal of and interest on each of the bonds issued
hereunder to the respective holders thereof at the time and place in said bonds
and the appurtenant coupons expressed.
SECTION 88. Notwithstanding any other provision of this Indenture, all the
parties hereto agree, and each holder or owner of any bond by his acceptance
thereof after the date of the execution hereof shall be deemed to have agreed,
that any Court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an under taking to pay the costs of such suit, and that such
Court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any bondholder or group of bondholders,
holding in the aggregate more than ten per centum (10%) in principal amount of
the bonds outstanding, or to any suit instituted by any bondholder for the
enforcement of the payment of the principal of or interest on any bond, on or
after the respective due dates expressed in such bond.
SECTION 89. The Company may waive any period of grace provided for in this
Article.
In case the Trustee shall have proceeded to enforce any right under this
Indenture by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored to their former positions and rights hereunder with
respect to the mortgaged and pledged property, and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE XV.
EVIDENCE OF RIGHTS OF BONDHOLDERS AND OWNERSHIP OF BONDS.
SECTION 90. Any request, declaration or other instrument, which this
Indenture may require or permit to be signed and executed by the bondholders,
may be in any number of concurrent instruments of similar tenor, and shall be
signed or executed by such bondholders in person or by attorney appointed in
writing. Proof of the execution of any such request or other instrument, or of a
writing appointing any such attorney, or of the holding by any person of the
bonds or coupons appertaining thereto, may be made in the following manner:
(a) The fact and date of the execution by any person of such request
or other instrument or writing may be proved by the certificate of any
notary public, or other officer authorized to take acknowledgments of deeds
to be recorded in the state in which he purports to act, that the person
signing such request or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution;
(b) The amount of bonds transferable by delivery held by any person
executing such request or other instrument as a bondholder, and the series
and serial numbers thereof, held by such person, and the date of his
holding the same, may be proved by a certificate executed by any trust
company, bank, banker or other depositary wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such person had on deposit with such
depositary, the bonds described in such certificate. The Trustee may
nevertheless in its discretion require further proof in cases where it
deems further proof desirable. The ownership of registered bonds shall be
proved by the registry books.
Any request, consent or vote of the owner of any bond shall bind all future
owners of the same in respect of anything done or suffered by the Company or the
Trustee in pursuance thereof.
SECTION 91. The Company and the Trustee may deem and treat the bearer of
any temporary or coupon bond outstanding hereunder, which shall not at the time
be registered as to principal as hereinbefore authorized, and the bearer of any
coupon for interest on any such bond, whether such bond shall be registered or
not, as the absolute owner of such bond or coupon, as the case may be, for the
purpose of receiving payment thereof or on account thereof and for all other
purposes, and neither the Company nor the Trustee shall be affected by any
notice to the contrary.
The Company and the Trustee may deem and treat the person in whose name any
fully registered bond outstanding hereunder shall be registered upon the books
of the Company as herein authorized, as the absolute owner of such bond for the
purpose of receiving payment of or on account of the principal of and interest
on such bond and for all other purposes, and they may deem and treat the person
in whose name any coupon bond shall be so registered as to principal as the
absolute owner thereof for the purpose of receiving payment of or on account of
the principal thereof and for all other purposes, except to receive payment of
interest represented by outstanding coupons; and all such payments so made to
any such registered holder or upon his order, shall be valid and effectual to
satisfy and discharge the liability upon such bond to the extent of the sum or
sums so paid, and neither the Company nor the Trustee shall be affected by any
notice to the contrary.
Neither the Company nor the Trustee shall be bound to recognize any person
as the holder of a bond outstanding under this Indenture unless and until his
bond is submitted for inspection, if required, except as may otherwise be
provided by regulations made under Section 120 hereof, and his title thereto
satisfactorily established, if disputed.
ARTICLE XVI.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 92. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any indenture supplemental hereto, or in any
bond or coupon hereby secured, or because of the creation of any indebtedness
hereby secured, shall be had against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director of the
Company or of any predecessor or successor corporation, as such, either directly
or through the Company or any predecessor or successor corporation under any
rule of law, statute or constitution or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise; it being expressly agreed and
understood that this Indenture, any indenture supplemental hereto and the
obligations hereby and thereby secured, are solely corporate obligations, and
that no personal liability whatever shall attach to, or be incurred by, such
incorporators, subscribers to the capital stock, stockholders, officers or
directors of the Company or of any predecessor or successor corporation, or any
of them, as such, because of the incurring of the indebtedness hereby
authorized, or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any indenture supplemental hereto
or in any of the bonds or coupons hereby secured, or implied therefrom, and that
any and all such personal liability of any name and nature, and any and all
rights and claims against every such incorporator, subscriber to the capital
stock, stockholder, officer or director, as such, whether arising at common law
or in equity, or created by rule of law, statute, constitution or otherwise, are
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the bonds
and interest obligations secured hereby; provided, however, that nothing
contained in this Indenture or in the bonds is intended or shall be construed to
constitute a waiver of compliance with any provision of the Securities Act of
1933, as amended, or of the rules and regulations thereunder.
ARTICLE XVII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SECTION 93. Nothing in this Indenture shall prevent any consolidation of
the Company with, or merger of the Company into, any corporation having
corporate authority to carry on any of the businesses mentioned in Section 4 of
this Indenture, or any conveyance, transfer or lease, subject to the lien of
this Indenture, of all or substantially all the mortgaged and pledged property
as an entirety to any corporation lawfully entitled to acquire or lease and
operate the same; provided, how ever, and the Company covenants and agrees, that
such consolidation, merger, conveyance, transfer or lease shall be upon such
terms as fully to preserve and in no respect to impair the lien or security of
this Indenture, or any of the rights or powers of the Trustee or the bondholders
hereunder; and provided, further, that any :such lease shall be made expressly
subject to immediate termination by the Company or by the Trustee at any time
during the continuance of a completed default hereunder, and also by the
purchaser of the property so leased at any sale thereof hereunder, whether such
sale be made under the power of sale hereby conferred or under judicial
proceedings; and provided further that, upon any such consolidation, merger,
conveyance or transfer, or upon any such lease the term of which extends beyond
the date of maturity of any of the bonds secured hereby, the due and punctual
payment of the principal and interest of all said bonds according to their tenor
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the Company shall be
expressly assumed by an indenture with the Trustee executed and caused to be
recorded by the corporation formed by such consolidation or into which such
merger shall have been made, or acquiring all or substantially all the mortgaged
and pledged property as an entirety, as aforesaid, or by the lessee under any
such lease the term of which extends beyond the date of maturity of any of the
bonds secured hereby.
SECTION 94. In case the Company, as permitted by Section 93 hereof, shall
be consolidated with or merged into any other corporation, or shall convey or
transfer, subject to the lien of this Indenture, all or substantially all the
mortgaged and pledged property as an entirety, the successor corporation formed
by such consolidation, or into which the Company shall have been merged, or
which shall have received a conveyance or transfer as aforesaid--upon executing
and causing to be recorded an indenture with the Trustee, satisfactory to the
Trustee whereby such successor corporation shall assume and agree to pay, duly
and punctually, the principal and interest of the bonds issued hereunder in
accordance with the provisions of said bonds and coupons and this Indenture, and
shall agree to perform and fulfill all the covenants and conditions of this
Indenture to be kept or performed by the Company-- shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein, and shall have and may exercise under this Indenture the same powers and
rights as the Company, and (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing general powers and
rights) such successor corporation thereupon may cause to be executed,
authenticated and delivered, either in its own name or in the name of
Indianapolis Power & Light Company, as its name shall then exist, in respect of
property of the character defined in Section 4 hereof as property additions,
such bonds as could or might have been executed, issued and delivered by the
Company had it acquired such property of such character by purchase on the date
of such consolidation, merger, conveyance or transfer and had such
consolidation, merger, conveyance or transfer not occurred, and upon the order
of such successor corporation in lieu of the Company, and subject to all the
terms, conditions and restrictions in this Indenture prescribed, concerning the
authentication and delivery of bonds, the Trustee shall authenticate and deliver
any bonds which shall have been previously signed and delivered by the officers
of the Company to the Trustee for authentication, and such bonds as the
successor corporation shall thereafter, in accordance with the provisions of
this Indenture, cause to be executed and delivered to the Trustee for such
purpose, and such successor corporation shall also have and may exercise in
respect of the property of such character, and subject to all the terms,
conditions and restrictions in this Indenture prescribed applicable thereto,
whether as to withdrawal of cash, release of property or otherwise, the same
powers and rights which the Company might or could exercise had it acquired the
property of such character by purchase on the date of such consolidation,
merger, conveyance or transfer and had such consolidation, merger, conveyance or
transfer not occurred. All the bonds so issued shall in all respects have the
same legal right and security as the bonds theretofore issued in accordance with
the terms of this Indenture as though all of said bonds had been authenticated
and delivered at the date of the execution hereof. As a condition precedent to
the execution by such successor corporation and the authentication and delivery
by the Trustee of any such additional bonds or the withdrawal of cash or the
release of property under any of the provisions of this Indenture or a credit
under the provisions of Section 41 hereof, on the basis of property of the
character defined in Section 4 hereof as property additions acquired, made or
constructed by the successor corporation, or by any corporation with which the
Company or any successor corporation may be so consolidated or into which the
Company or any successor corporation may be so merged or to which the Company or
any successor corporation may make any such conveyance, the indenture with the
Trustee to be executed and caused to be recorded by the successor corporation as
in this Article XVII provided or a subsequent indenture shall contain a
conveyance or transfer and mortgage in terms sufficient to subject such property
to the lien hereof; and provided further that the lieu created thereby and the
lien thereof shall have similar force, effect and standing as the lien of this
Indenture would have if the Company should not be consolidated with or merged
into such other corporation or should not convey or transfer, subject to this
Indenture, all or substantially all the mortgaged and pledged property as an
entirety, as aforesaid, to such successor corporation, and should itself on the
date of such consolidation, merger, conveyance or transfer, acquire or construct
such property, and request the authentication and delivery of bonds or the
withdrawal of cash or the release of property under the provisions of this
Indenture in respect thereof or a credit under the provisions of Section 41
hereof.
To the extent permitted by Sections 97 and 98, the Trustee may receive an
opinion of counsel as conclusive evidence that any such assumption and any such
lien and any such indenture comply with the foregoing conditions and provisions
of this Section.
SECTION 95. In case the Company, as permitted by Section 93 of this
Indenture, shall be consolidated with or merged into any other corporation, or
shall convey or transfer, subject to this Indenture, all or substantially all
the mortgaged and pledged property as an entirety as aforesaid, neither this
Indenture nor the indenture with the Trustee to be executed and caused to be
recorded by the successor corporation as in this Article XVII hereof provided,
shall, unless such indenture shall otherwise provide, become or be a lien upon
any of the property or franchises of the successor corp9ration except (a) those
acquired by it from the Company and appurtenant thereto and property which the
successor corporation shall thereafter acquire or construct which shall form an
integral part of, and be essential or convenient to the use or operation of, any
property then or thereafter subject to the lien hereof, (b) the property made
and used by the successor corporation as the basis under any of the provisions
of this Indenture for the authentication and delivery of additional bonds or the
withdrawal of cash or the release of property or a credit under the provisions
of Section 41 hereof and (c) such franchises, repairs and additional property as
may be acquired, made or constructed by the successor corporation (1) to
maintain, renew and preserve the franchises covered by this Indenture or to
maintain the mortgaged and pledged property as an operating system or systems in
good repair, working order and condition, or (2) in pursuance of some covenant
or agreement hereof to be kept or performed by the Company. Unless and until the
successor corporation shall subject all the properties of the successor
corporation to the lien of this Indenture, it shall in case of any merger,
consolidation or transfer keep the accounts of the successor corporation so that
the earnings of the mortgaged and pledged property may be at all times
distinguished, and all covenants herein contained affecting the mortgaged and
pledged property be fully performed.
ARTICLE XVIII.
CONCERNING THE TRUSTEE.
SECTION 96. The Trustee shall at all times be a bank or trust company
having its principal office and place of business in the City of Chicago, State
of Illinois, or in the Borough of Manhattan, The City of New York if there be
such a bank or trust company willing and able to accept the trust upon
reasonable or customary terms, and which shall at all times be a bank or trust
company organized as a corporation and doing business under the laws of the
United States or of the State of Illinois or of the State of New York, with a
capital and surplus of at least $2,500,000 and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority. If the Trustee publishes reports of condition at
least annually, pursuant to law or to the requirements of any supervising or
examining authority referred to in this Section, then for the purposes of this
Section the combined capital and surplus of the Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
The Company covenants that whenever necessary to avoid or fill a vacancy in
the office of Trustee, it will, in the manner provided in Section 113 hereof,
appoint a Trustee so that there shall at all times be a Trustee eligible under
this Section.
SECTION 97. The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to a completed default, and after the curing of all
completed defaults which may have occurred, to perform such duties and only such
duties as are specifically set forth in this Indenture, and in case of a
completed default (which has not been cured) to exercise such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
The Trustee, upon receipt of evidence furnished to it by or on behalf of
the Company pursuant to any provision of this Indenture, will examine the same
to determine whether or not such evidence conforms to the requirements of this
Indenture.
SECTION 98. No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(a) prior to completed default hereunder and after the curing of all
completed defaults which may have occurred, the Trustee shall not be liable
except for the performance of such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee but the duties and obligations of the Trustee,
prior to completed default and after the curing of all completed defaults which
may have occurred, shall be determined solely by the express provisions of this
Indenture; and
(b) prior to completed default hereunder and after the curing of all
completed defaults which may have occurred, and in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely as to the truth of
the statements and the correctness of opinions expressed therein, upon
certificates or opinions conforming to the requirements of this Indenture; and
(c) the Trustee shall not be personally liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(d) the Trustee shall not be personally liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the
bonds at the time outstanding (determined as provided in Section 2 hereof)
relating to the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
SECTION 99. The recitals of fact contained herein and in the bonds shall be
taken as the statements of the Company and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representations as to the
value of the mortgaged and pledged property or any part thereof, or as to the
title of the Company thereto, or as to the validity or adequacy of the security
afforded thereby and hereby, or as to the validity of this Indenture or of the
bonds or coupons issued hereunder.
SECTION 100. Subject to the provisions of Sections 97 and 98, the Trustee
shall not be personally liable in case of entry by it upon the mortgaged and
pledged property for debts contracted or liability or damages incurred in the
management or operation of said property.
SECTION 101. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee on the Company
shall be deemed to have been sufficiently given or served, for all purposes, by
being deposited postage prepaid in a post-office letter box addressed (until
another address is filed by the Company with the Trustee for the purposes of
this Section), as follows: Indianapolis Power & Light Company, Indianapolis,
Indiana.
SECTION 102. To the extent permitted by Sections 97 and 98:
(1) The Trustee may rely and shall be protected in acting upon any
resolution, certificate, opinion, notice, request, consent, order,
appraisal, report, bond, or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties; and
(2) The Trustee may consult with counsel selected by it and the
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
SECTION 103. The Trustee shall not be under any responsibility for the
approval or selection of any expert for any of the purposes expressed in this
Indenture, except that nothing in this Section contained shall relieve the
Trustee of its obligation to exercise reasonable care with respect to the
approval or selection of independent experts who may furnish opinions or
certificates to the Trustee pursuant to any provision of this Indenture.
Any resolution of the Board of Directors or Executive Committee shall be
evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted.
Nothing contained in this Section shall be deemed to modify the obligation
of the Trustee to exercise after a completed default the rights and powers
vested in it by this Indenture with the degree of care and skill specified in
Section 97.
SECTION 104. The Trustee, in its individual or any other capacity, may
become the owner or pledgee of bonds or coupons secured hereby with the same
rights it would have if it were not Trustee.
SECTION 105. Subject to the provisions of Section 130 hereof, all moneys
received by the Trustee whether as Trustee or paying agent shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were paid, but need not be segregated from other funds except to the extent
required by law. The Trustee may allow and credit to the Company interest on any
moneys received by it hereunder at such rate, if any, as may be agreed upon with
the Company from time to time and as may be permitted by law.
SECTION 106. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust, and the Company
will reimburse the Trustee with interest for all advances made by the Trustee in
accordance with any of the provisions of this Indenture and will pay to the
Trustee from time to time its expenses and disbursements (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ). The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending against any claim of
liability in the premises. The obligations of the Company to the Trustee under
this Section shall constitute additional indebtedness secured hereby. Such
additional indebtedness shall be secured by a lien prior to that of the bonds
upon the trust estate, including all property or funds held or collected by the
Trustee as such.
SECTION 107. Whenever in the administration of the trusts of this
Indenture, prior to a completed default hereunder, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company and
delivered to the Trustee, and such certificate shall be full warrant to the
Trustee for any action taken or suffered by it under the provisions of this
Indenture upon the faith thereof.
SECTION 108. Whenever it is provided in this Indenture that the Trustee
shall take any action upon the happening of a specified event or upon the
fulfillment of any condition or upon the request of the Company or of
bondholders, the Trustee taking such action shall have full power to give any
and all notices and to do any and all acts and things incidental to such action.
SECTION 109. (a) If the Trustee has or acquires any conflicting interest,
as defined by subsection (d) of this Section, the Trustee shall within 90 days
after ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign by giving written notice to the Company, but such
resignation shall not become effective until the appointment of a successor
trustee and such successor's acceptance of such appointment. The Company
covenants to take prompt steps to have a successor appointed in the manner
hereinafter provided in Section 113. Upon giving such notice of resignation, the
resigning Trustee shall publish notice thereof in one daily newspaper printed in
the English language of general circulation in the City of Chicago, State of
Illinois, once in each of three successive calendar weeks, in each case on any
business day of the week, which need not be the same day in each week. If the
resigning Trustee fails to publish such notice within ten days after giving
written notice of its resignation to the Company, the Company shall publish such
notice.
(b) In the event that the Trustee shall fail to comply with the provisions
of the preceding subsection (a) of this Section, the Trustee shall within 10
days after the expiration of such 90 day period transmit notice of such failure
to the bondholders, in the manner and to the extent provided in subsection (c)
of Section 53 hereof with respect to reports pursuant to subsection (a) of
Section 53 hereof.
(c) Subject to the provisions of Section 88 hereof any bondholder who has
been a bona fide holder of a bond or bonds for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor if the Trustee fails, after written request therefor by such holder,
to comply with the provisions of subsection (a) of this Section.
(d) The Trustee shall be deemed to have a conflicting interest if--
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, except as otherwise provided in
Paragraph (1) of subsection (b) of Section 310 of the Trust Indenture Act
of 1939;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the bonds or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (A) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and
the Company; (B) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the Company;
and (C) the Trustee may be designated by the Company or by any underwriter
for the Company to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent or depositary or in any
other similar capacity or, subject to the provisions of paragraph (1) of
this subsection, to act as trustee whether under an indenture or otherwise;
(5) 10 per centum or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20 per centum or more of such voting
securities is beneficially owned, collectively, by any two or more of such
persons; or 10 per centum or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, (A) 5 per centum or more of
the voting securities or 10 per centum or more of any other class of
security of the Company, not including the bonds issued under this
Indenture and securities issued under any other indenture under which the
Trustee is also trustee, or (B) 10 per centum or more of any class of
security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 5 per centum or more of the
voting securities of any person who, to the knowledge of the Trustee, owns
ten per centum or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 10 per centum or more of
any class of security of any person who, to the knowledge of the Trustee,
owns 50 per centum or more of the voting securities of the Company; or
(9) the Trustee owns on May 15th in any calendar year in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25 per centum or more of the voting securities or of any class of security,
of any person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7), or
(8) of this subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamentary
trustee of an estate which included them, the provisions of the preceding
sentence shall not apply for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25 per centum of such voting securities or 25 per centum of any
such class of security. Promptly after May 15th, in each calendar year, the
Trustee shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of May 15th. If the Company fails to make
payment in full of principal or interest upon the bonds when and as the
same become due and payable, and such failure continues for thirty days
thereafter, the Trustee shall make a prompt check of its holdings of such
securities in any of the above- mentioned capacities as of the date of the
expiration of such thirty-day period and after such date, notwithstanding
the foregoing provisions of this paragraph, all such securities so held by
the Trustee with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(6), (7), and (8) of this subsection (d).
The specifications of percentages in paragraphs (5) to (9), inclusive, of
this subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (d)
only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for thirty days or
more and shall not have been cured; and (C) the Trustee shall not be deemed to
be the owner or holder of (i) any security which it holds as collateral security
(as trustee or otherwise) for an obligation which is not in default as above
defined, or (ii) any security which it holds as collateral security under this
Indenture, irrespective of any default hereunder, or (iii) any security which it
holds as agent for collection, or as custodian, escrow agent or depositary, or
in any similar representative capacity.
For the purposes of this subsection (d) only, the term "voting security"
shall mean any security presently entitling the owner or holder thereof to vote
in the direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby a
trustee or trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the affairs of
a person.
For the purposes of this subsection (d) only, the term "director" shall
mean any director of a corporation or any individual performing similar
functions with respect to any organization, whether incorporated or
unincorporated.
For the purposes of this subsection (d) only, the term "executive officer"
shall mean the President, every Vice-President, every Trust Officer, the
Cashier, the Secretary and the Treasurer of a corporation, and any individual
customarily performing similar functions with respect to any organization,
whether incorporated or unincorporated, but shall not include the Chairman of
the Board of Directors.
For the purposes of this subsection (d) only, the term "underwriter" when
used with reference to the Company means every person who, within three (3)
years prior to the time as of which the determination is made, has purchased
from the Company with a view to, or has sold for the Company in connection with,
the distribution of any security of the Company, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
For the purposes of this subsection (d) only, the term "Company" shall
include any obligor on bonds secured hereby.
(e) The percentages of voting securities and other securities specified in
subsection (d) of this Section shall be calculated in accordance with the
following provisions:
(i) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this subsection (e)) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(ii) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(iv) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(1) Securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) Securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(3) Securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise:
(4) Securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(v) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges, provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes, and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) If a separate or co-trustee is appointed pursuant to Section 114, the
provisions of this Section which have been made specifically applicable to the
Trustee, shall also apply to any separate or cotrustee, except that in case of
the resignation of a separate or cotrustee such resignation and the appointment
of a successor shall (subject to the provisions of subsection (c) of this
Section) be governed by the provisions of paragraph (3) of Section 114.
SECTION 110. (a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within four months prior to a
default (as defined in the last paragraph of this subsection), or subsequent to
such a default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the bonds, and the holders of other indenture
securities (as defined in the last paragraph of this subsection)
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received in respect of any claim as such creditor,
either as security therefor, or in satisfaction or composition thereof, or
otherwise after the beginning of such four months' period, or an amount
equal to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in the
last paragraph of this subsection would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted after the
beginning of such four months' period for property held as security at the time
of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the bondholders, and the holders of other indenture securities in such
manner that the Trustee, the bondholders, and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Bankruptcy Act
or applicable State law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee, the bondholders, and
the holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Act or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Act or applicable State law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the bondholders, and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, the bondholders, and the holders of other indenture securities,
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula. To the extent that the claim of the Trustee
has been reduced in amount or satisfied by the receipt of moneys or property
which later have been apportioned to the Bondholders and the holders of other
indenture securities on an accounting, as hereinabove provided, such claim of
the Trustee shall be reinstated in amount.
Any Trustee who has resigned or been removed after the beginning of such
four months' period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four months' period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist--
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
As used in this Section, the term "default" means any failure to make
payment in full of the principal of or interest upon the bonds or upon the other
indenture securities when and as such principal or interest becomes due and
payable; and the term "other indenture securities" means securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (a) under which the Trustee is also
trustee, (b) which contains provisions substantially similar to the provisions
of this subsection, and (c) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from--
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee; and for the purposes of
this paragraph the term "security" shall mean any note, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, preorganization
certificate, certificate of deposit for a security, or, in general, any
interest or instrument commonly known as a "security" or any certificate of
interest or participation in, temporary or interim certificate for, receipt
for, guaranty of, or warrant or right to subscribe to or purchase, any of
the fore going;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving
the property subject to the lien of this Indenture or of discharging tax
liens or other liens or encumbrances, prior to the lien of this Indenture,
on the trust estate, if notice of such advance and of the circumstances
surrounding the making thereof is given to the bondholders as provided in
subsections (a), (b) and (c) of Section 53 hereof with respect to advances
by the Trustee as such;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in the last paragraph of
this subsection;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25 (a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the Company;
or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in the last paragraph
of this subsection.
As used in this Section, the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; the term
"self-liquidating paper" shall mean any draft, xxxx of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the
obligor arising from the making, drawing, negotiating or incurring of the draft,
xxxx of exchange, acceptance or obligation; and the term "Trustee" shall include
any separate or co-trustee appointed pursuant to Section 114.
As used in this Section, the term "Company" shall include any obligor on
bonds secured hereby.
SECTION 111. The Trustee may at any time resign and be discharged of the
trusts hereby created by giving written notice to the Company specifying the day
upon which such resignation shall take effect and thereafter publishing notice
thereof, in one daily newspaper printed in the English language and of general
circulation in the City of Chicago, State of Illinois, once in each of three
successive calendar weeks, in each case on any business day of the week, which
need not be the same day in each week, and such resignation shall take effect
upon the day specified in such notice unless previously a successor trustee
shall have been appointed by the bondholders or the Company in the manner
hereinafter provided in Section 113, and in such event such resignation shall
take effect immediately on the appointment of such successor trustee. This
Section shall not be applicable to resignations pursuant to Section 109.
SECTION 112. The Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with the Trustee and signed and
acknowledged by the holders of a majority in principal amount of the bonds then
outstanding (determined as provided in Section 2 hereof) or by their attorneys
in fact duly authorized.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 96, then the Trustee shall resign immediately in
the manner and with the effect specified in Section 111, and, in the event that
the Trustee does not resign immediately in such case, then it may be removed
forthwith by an instrument or concurrent instruments in writing filed with the
Trustee and either (a) signed by the President or a Vice-President of the
Company with its corporate seal attested by a Secretary or an Assistant
Secretary of the Company or (b) signed and acknowledged by the holders of a
majority in principal amount of the bonds then outstanding or by their attorneys
in fact duly authorized.
SECTION 113. In case at any time the Trustee shall resign or shall be
removed (unless the Trustee shall be removed as provided in subsection (c) of
Section 109 in which event the vacancy shall be filled as provided in said
subsection) or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or if a receiver of the Trustee or of its property shall be
appointed, or if any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, a vacancy shall be deemed to exist in the office of Trustee, and a
successor or successors may be appointed by the holders of a majority in
principal amount of the bonds then outstanding hereunder (determined as provided
in Section 2 hereof), by an instrument or concurrent instruments in writing
signed and acknowledged by such bondholders or by their attorneys in fact duly
authorized, and delivered to such new trustee, notification thereof being given
to the Company and the retiring trustee; provided, nevertheless, that until a
new trustee shall be appointed by the bondholders as aforesaid, the Company, by
instrument executed by order of its Board of Directors or Executive Committee
and duly acknowledged by its President or a Vice-President, may appoint a
trustee to fill such vacancy until a new trustee shall be appointed by the
bondholders as herein authorized. The Company shall publish notice of any such
appointment made by it in the manner provided in Section 111. Any new trustee
appointed by the Company shall, immediately and without further act, be
superseded by a trustee appointed by the bondholders as above provided, if such
appointment by the bondholders be made prior to the expiration of one year after
the first publication of notice of the appointment of the new trustee by the
Company.
If in a proper case no appointment of a successor trustee shall be made
pursuant to the foregoing provisions of this Section within 6 months after a
vacancy shall have occurred in the office of trustee, the holder of any bond
outstanding hereunder or any retiring trustee may apply to any court of
competent jurisdiction to appoint a successor trustee. Said court may thereupon
after such notice, if any, as such court may deem proper and prescribe, appoint
a successor trustee.
If the Trustee resigns because of a conflict of interest as provided in
subsection (a) of Section 109 and a successor has not been appointed by the
Company or the bondholders or, if appointed, has not accepted the appointment
within 30 days after the date of such resignation, the resigning Trustee may
apply to any court of competent jurisdiction for the appointment of a successor
trustee.
Any trustee appointed under the provisions of this Section in succession to
the Trustee shall be a bank or trust company eligible under Section 96 and
qualified under Section 109.
Any trustee which has resigned or been removed shall nevertheless retain
the lien upon the mortgaged or pledged property, including all property or funds
held or collected by the trustee as such, to secure the amounts due to the
trustee as compensation, reimbursement, expenses and indemnity, afforded to it
by Section 106.
SECTION 114. At any time or times, for the purpose of conforming to any
legal requirements, restrictions or conditions in any State or jurisdiction in
which any part of the mortgaged and pledged property then subject to this
Indenture may be located, the Company and the Trustee shall have power to
appoint, and, upon the request of the Trustee the Company shall for such purpose
join with the Trustee in the execution, delivery and performance of, all
instruments and agreements necessary or proper to appoint another corporation or
one or more persons approved by the Trustee, either to act as separate trustee
or trustees, or co-trustee or co-trustees jointly with the Trustee, of all or
any of the property subject to the lien hereof. In the event that the Company
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, the Trustee alone shall have power to make such
appointment.
Every separate trustee, every co-trustee and every successor trustee, other
than any trustee which may be appointed as successor to American National Bank
and Trust Company of Chicago shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following provisions and conditions,
namely:
(1) The rights, powers, duties and obligations conferred or imposed
upon trustees hereunder or any of them shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees jointly, as shall be
provided in the supplemental indenture appointing such separate trustee or
separate trustees or cotrustee or co- trustees, except to the extent that
under any law of any jurisdiction in which any particular act or acts are
to be performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate trustee or
separate trustees or co-trustee or co-trustees;
(2) The bonds secured hereby shall be authenticated and delivered, and
all powers, duties, obligations and rights, conferred upon the Trustee in
respect of the custody of all bonds and other securities and of all cash
pledged or deposited hereunder, shall be exercised solely by American
National Bank and Trust Company of Chicago or its successor in the trust
hereunder;
(3) The Company and the Trustee, at any time by an instrument in
writing executed by them jointly, may accept the resignation of or remove
any separate trustee or co-trustee appointed under this Section or
otherwise, and, upon the request of the Trustee, the Company shall, for
such purpose, join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to make
effective such resignation or removal. In the event that the Company shall
not have joined in such action within 15 days after the receipt by it of a
request so to do, the Trustee alone shall have power to accept such
resignation or to remove any such separate trustee or co-trustee. A
successor to a separate trustee or co-trustee so resigned or removed may be
appointed in the manner provided in this Section;
(4) No trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
Any notice, request or other writing, by or on behalf of the holders
of the bonds delivered to American National Bank and Trust Company of
Chicago, or its successor in the trust hereunder, shall be deemed to have
been delivered to all of the then trustees or co- trustees as effectually
as if delivered to each of them. Every instrument appointing any trustee or
trustees other than a successor to American National Bank and Trust Company
of Chicago shall refer to this Indenture and the conditions in this Article
expressed, and upon the acceptance in writing by such trustee or trustees
or co-trustee or co-trustees, he, they or it shall be vested with the
estates or property specified in such instrument, either jointly with
American National Bank and Trust Company of Chicago or its successor, or
separately, as may be provided therein, subject to all the trusts,
conditions and provisions of this Indenture; and every such instrument
shall be filed with American National Bank and Trust Company of Chicago or
its successor in the trust hereunder. Any separate trustee or trustees, or
any co- trustee or co-trustees, may at any time by an instrument in writing
constitute American National Bank and Trust Company of Chicago or its
successor in the trust hereunder his, their or its agent or
attorney-in-fact, with full power and authority, to the extent which may be
permitted by law, to do all acts and things and exercise all discretion
authorized or permitted by him, them or it, for and in behalf of him, them
or it, and in his, their or its name. In case any separate trustee or
trustees or co-trustee or co-trustees, or a successor to any of them, shall
die, become incapable of acting, resign or be removed, all the estates,
property, rights, powers, trusts, duties and obligations of said separate
trustee or co-trustee, so far as permitted by law, shall be vested in and
be exercised by American National Bank and Trust Company of Chicago or its
successor in the trust hereunder, without the appointment of a new trustee
as successor to such separate trustee or co-trustee.
SECTION 115. Any successor trustee appointed hereunder shall execute,
acknowledge and deliver to his or its predecessor trustee, and also to the
Company, an instrument accepting such appointment hereunder, and thereupon such
successor trustee, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties
and obligations of his or its predecessor in trust hereunder, with like effect
as if originally named as trustee herein; but the trustee ceasing to act shall
nevertheless, on the written request of the Company, or of the successor
trustee, or of the holders of 10 percentum in principal amount of the bonds then
outstanding hereunder, execute, acknowledge and deliver such instruments of
conveyance and further assurance and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in such successor
trustee all the right, title and interest of the trustee to which he or it
succeeds, in and to the mortgaged and pledged property and such rights, powers,
trusts, duties and obligations, and the trustee ceasing to act shall also, upon
like request, pay over, assign and deliver to the successor trustee any money or
other property subject to the lien of this Indenture, including any pledged
securities, which may then be in his or its possession. Should any deed,
conveyance or instrument in writing from the Company be required by the new
trustee for more fully and certainly vesting in and confirming to such new
trustee such estates, properties, rights, powers, trusts and duties, any and all
such deeds, conveyances and instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company.
SECTION 116. Any corporation into which the Trustee may be merged or with
which it may be consolidated or any corporation resulting from any merger or
consolidation to which the Trustee shall be a party or any corporation to which
substantially all the business and assets of the Trustee may be transferred,
provided such corporation shall be eligible under the provisions of Section 96
and qualified under Section 109 shall be the successor trustee under this
Indenture, without the execution or filing of any paper or the performance of
any further act on the part of any other parties hereto, anything herein to the
contrary notwithstanding. In case any of the bonds contemplated to be issued
hereunder shall have been authenticated but not delivered, any such successor to
the Trustee may, subject to the same terms and conditions as though such
successor had itself authenticated such bonds, adopt the certificate of
authentication of the original Trustee or of any successor to it as trustee
hereunder, and deliver the said bonds so authenticated; and in case any of said
bonds shall not have been authenticated, any successor to the Trustee may
authenticate such bonds either in the name of any predecessor hereunder or in
the name of the successor trustee, and in all such cases such certificates shall
have the full force which it is anywhere in said bonds or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to authenticate bonds in the name of the Trustee shall apply only to
its successor or successors by merger or consolidation or sale as aforesaid.
ARTICLE XIX.
DISCHARGE OF MORTGAGE.
SECTION 117. The Trustee (and any trustee or trustees or co-trustee or
co-trustees appointed pursuant to Article XVIII hereof) may, and upon request of
the Company shall, cancel and discharge the lien of these presents and of all
indentures supplemental hereto, and execute and deliver to the Company such
deeds and instruments as shall be requisite to satisfy the lien hereof and of
all indentures supplemental hereto, and reconvey and transfer to the Company the
mortgaged and pledged property, whenever all indebtedness secured hereby shall
have been paid, including all proper charges of the Trustee hereunder.
Bonds and interest obligations for the payment of which and bonds for the
redemption of which moneys shall have been set apart by or deposited with the
Trustee with irrevocable direction so to apply the same, subject to the
provisions of Section 130 hereof (with or without any additional right given to
the holders to surrender their bonds and obtain therefrom payment therefor prior
to the redemption date) shall for all purposes of this Article XIX be deemed to
have been paid; provided that in case of redemption the notice requisite to the
validity of such redemption shall have been given or arrangements shall have
been made insuring to the satisfaction of the Trustee that the same will be
given.
ARTICLE XX.
MEETINGS OF BONDHOLDERS.
SECTION 118. Modifications and alterations of this Indenture and/or of any
indenture supplemental hereto and/or of the rights and obligations of the
Company and/or of the holders of outstanding bonds and coupons issued hereunder
may be made as provided in the nine next succeeding Sections hereof numbered 119
to 127, both inclusive.
SECTION 119. The Trustee may at any time call a meeting of the bondholders
affected by the business to be submitted to the meeting and it shall call such a
meeting on the written request of the Company, given pursuant to a resolution of
its Board of Directors. The holders of fifteen per centum (15%) or more in
principal amount of the bonds affected by the business to be submitted to the
meeting outstanding hereunder at the time of such request may request the
Trustee to call such a meeting. In the event of the Trustee's failing for ten
(10) days to call a meeting after being thereunto requested by the Company or
the bondholders as above set forth, holders of outstanding bonds affected by the
business to be submitted to the meeting to the amount above specified in this
Section or the Company, pursuant to resolution of its Board of Directors, may
call such meeting. Every such meeting called by and at the instance of the
Trustee shall be held at the principal office of the Trustee, or, at the
election of the Trustee, at such place in the Borough of Manhattan, The City of
New York, as shall be selected by the Trustee or, with the written approval of
the Company, at any other place in the United States of America, and written
notice thereof, stating the place and time thereof and in general terms the
business to be submitted, shall be mailed by the Trustee not less than thirty
(30) days before such meeting (a) to each registered holder of bonds affected by
the business to be submitted to the meeting then outstanding hereunder addressed
to him at his address appearing on the registry books, (b) to each holder of any
such bond payable to bearer who shall have filed with the Trustee an address for
notices to be addressed to him, (c) to all other bondholders whose names and
addresses are preserved at the time by the Trustee, as provided in subdivision
(a) of Section 51 hereof, and (d) to the Company addressed to it at
Indianapolis, Indiana (or at such other address as may be designated by the
Company from time to time) and shall be published by the Trustee at least once a
week for four (4) successive calendar weeks immediately preceding the meeting in
a daily newspaper printed in the English language and published and of general
circulation in the Borough of Manhattan, The City of New York; provided,
however, that the mailing of such notice to any bondholders affected by the
business submitted to the meeting shall in no case be a condition precedent to
the validity of any action taken at such meeting. If such meeting is called by
or at the instance either of the Company or the bondholders affected by the
business submitted to the meeting, it shall be held at such place in the United
States of America as may be specified in the notice calling such meeting and
notice thereof shall be sufficient for all purposes hereof if given by newspaper
publication as aforesaid stating the place and time of the meeting and in
general terms the business to be transacted. Any meeting of bondholders shall be
valid without notice if the holders of all bonds affected by the business
submitted to the meeting then outstanding hereunder are present in person or by
proxy and if the Company and the Trustee are present by duly authorized
representatives, or if notice is waived in writing before or after the meeting
by the Company, the holders of all bonds affected by the business submitted to
the meeting outstanding hereunder or by such as are not present in person or by
proxy and by the Trustee.
SECTION 120. Officers and nominees of the Trustee and of the Company may
attend and be heard at such meeting, but as such shall not be entitled to vote
thereat. Attendance by bondholders may be in person or by proxy. In order that
the holders of bonds payable to bearer and their proxies may attend and vote
without producing their bonds, the Trustee, with respect to any such meeting
called by the Trustee, may make and from time to time vary such regulations as
it shall think fit for deposit of bonds with any banks, bankers or trust
companies, and for the issue to the persons depositing the same of certificates
by such depositaries entitling the holders thereof to be present and vote at any
such meeting and to appoint proxies to represent them and vote for them at any
such meeting in the same way as if the persons so present and voting, either
personally or by proxy, were the actual bearers of the bonds in respect of which
such certificates shall have been issued, and any regulations so made shall be
binding and effective. If any such meeting shall have been called by bondholders
affected by the business submitted to the meeting or by the Company as aforesaid
upon failure of the Trustee to call the same after having been so requested to
do under the provisions of Section 119 hereof, regulations to like effect for
such deposit of bonds with an issue of certificates by any bank or trust company
organized under the laws of the United States of America or of any state
thereof, having a capital of not less than One hundred thousand dollars
($100,000), shall be similarly binding and effective for all purposes hereof if
adopted or approved by the bondholders calling such meeting or by the Board of
Directors of the Company, if such meeting shall have been called by the Company,
provided that in either such case copies of such regulations shall be filed with
the Trustee.
SECTION 121. Subject to the restrictions specified in Section 120 hereof,
any registered holder of bonds affected by the business to be submitted at the
meeting outstanding hereunder and any holder of a certificate provided for in
Section 120 hereof, shall be entitled in person or by proxy to attend and vote
at such meeting as holder of the bonds registered or certified in the name of
such holder without producing such bonds. All others seeking to attend or vote
at such meeting in person or by proxy must, if required by any authorized
representative of the Trustee or the Company or by any other bondholder affected
by the business to be submitted at the meeting, produce the bonds claimed to be
owned or represented at such meeting, and every one seeking to attend or vote
shall, if required as aforesaid, produce such further proof of bond ownership or
personal identity as shall be satisfactory to the authorized representative of
the Trustee, or if none be present then to the Inspectors of Votes hereinafter
provided for. Proxies shall be acknowledged as required for an instrument to be
recorded in the State of Illinois, and all proxies and certificates presented at
any meeting shall be delivered to said Inspectors of Votes and filed with the
Trustee.
SECTION 122. Persons named by the Trustee if represented at the meeting
shall act as temporary Chairman and Secretary, respectively, of the meeting, but
if the Trustee shall not be represented or shall fail to nominate such persons
or if any person so nominated shall not be present, the bondholders and proxies
present and entitled to vote shall by a majority vote, irrespective of the
amount of their holdings, elect other persons from those present to fill such
vacancy or vacancies. A permanent Chairman and a permanent Secretary of such
meeting shall be elected from those present by the bondholders and proxies
present and entitled to vote by a majority vote irrespective of the amount of
their holdings. The Trustee, if represented at the meeting, shall appoint two
Inspectors of Votes who shall count all votes cast at such meeting, except votes
on the election of a Chairman and Secretary, both temporary and permanent, as
aforesaid, and who shall make and file with the permanent Secretary of the
meeting their verified written report in duplicate of all such votes so cast at
said meeting. If the Trustee shall not be represented at the meeting or shall
fail to nominate such Inspectors of Votes or if either Inspector of Votes fails
to attend the meeting the vacancy shall be filled by appointment by the
permanent Chairman of the meeting.
SECTION 123. Subject to the provisions of this Section and of Section 127
hereof, the holders of not less than sixty-six and two-thirds per centum (66
2/3%) in principal amount of the bonds outstanding hereunder (computed as
provided in Section 2 hereof) when such meeting is held must be present at such
meeting in person or by proxy in order to constitute a quorum for the
transaction of business, less than a quorum, however, having power to adjourn;
provided, however, that in case more than one series of bonds shall be
outstanding under this Indenture, and any business to be submitted to such
meeting shall affect the rights of holders of the bonds of one or more series
and shall not affect the rights of holders of the bonds of one or more of the
other series, then only holders of the bonds of the series to be affected shall
have the right to notice of or to attend or vote at any such meeting or shall be
counted for the purpose of a quorum. The determination of the Trustee as to what
series of bonds the rights of the holders of which are affected shall be
conclusive. If such meeting is adjourned by less than a quorum for more than
fourteen (14) days, notice thereof shall forthwith be mailed by the Trustee if
such meeting shall have been called by the Trustee (a) to the Company addressed
to it at Indianapolis, Indiana (or at such other address as may be designated by
the Company in writing from time to time), (b) to each registered holder of
bonds entitled to notice then outstanding hereunder addressed to him at his
address appearing on the registry books, and (c) to each holder of any such bond
payable to bearer who shall have filed with the Trustee an address for notices,
and (d) to every other bondholder whose name and address is preserved at the
time by the Trustee, as provided in subdivision (a) of Section 51 hereof, in
each case addressed to him at such address, and shall be published at least once
in each fourteen (14) day period of such adjournment in a daily newspaper
printed in the English language and published and of general circulation in the
Borough of Manhattan, The City of New York. Failure to mail such notice to any
such bondholder as aforesaid shall in no case affect the validity of any action
taken at any meeting held pursuant to such adjournment. If such meeting shall
have been called by bondholders or by the Company after the failure of the
Trustee to call the same after being requested so to do in accordance with the
provisions of Section 119 hereof, notice of such adjournment shall be given by
the permanent Chairman and permanent Secretary of the meeting in the newspapers
and for the number of times above specified in this Section and shall be
sufficient if so given.
SECTION 124. Subject to the provisions of Section 123 and Section 127
hereof, any modification or alteration of this Indenture and/or of any indenture
supplemental hereto and/or of the rights and obligations of the Company and/or
of the holders of bonds and coupons issued here under in any particular may be
made at a meeting of bondholders duly convened and held in accordance with the
provisions of this Article, but only by resolution duly adopted by the
affirmative vote of the holders of sixty-six and two-thirds per centum (66%%) or
more in principal amount of the bonds entitled to vote at such meeting
outstanding hereunder (computed as provided in Section 2 hereof) when such
meeting is held, and approved by resolution of the Board of Directors of the
Company as hereinafter specified; provided, however, that no such modification
or alteration shall, without the consent of the holder of any bond issued
hereunder affected thereby, permit (1) the extension of the maturity of the
principal of such bond, or (2) the reduction in the rate of interest thereon or
any other modification in the terms of payment of such principal or interest or
(3) the creation of any lien ranking prior to, or on a parity with the lien of
this Indenture with respect to any of the property mortgaged or pledged
hereunder or (4) the deprivation of any non-assenting bondholder of a lien upon
the mortgaged and pledged property for the security of his bonds (subject only
to the lien of taxes, assessments or governmental charges not then due and
delinquent and to any mortgage or other liens existing upon said property which
are prior hereto at the date of the calling of any such bondholders' meeting) or
(5) the reduction of the percentage required by the provisions of this Section
for the taking of any action under this Section with respect to any bond
outstanding hereunder. For all purposes of this Article, the Trustee, subject to
the provisions of Sections 97 and 98, shall be entitled to rely upon an opinion
of counsel with respect to the extent, if any, as to which any action taken at
such meeting affects the rights under this Indenture or under any indenture
supplemental hereto of any holders of bonds then outstanding hereunder.
SECTION 125. A record in duplicate of the proceedings of each meeting of
bondholders shall be prepared by the permanent Secretary of the meeting and
shall have attached thereto the original reports of the Inspectors of Votes, and
affidavits by one or more persons having knowledge of the facts showing a copy
of the notice of the meeting and a copy of the notice of adjournment thereof, if
required under the provisions of Section 123 hereof, and showing that said
notices were mailed and published as provided in Section 119 hereof and, in a
proper case, as provided in Section 123 hereof. Such record shall be signed and
verified by the affidavits of the permanent Chairman and the permanent Secretary
of the meeting, and one duplicate thereof shall be delivered to the Company and
the other to the Trustee for preservation by the Trustee. Any record so signed
and verified shall be proof of the matters therein stated until the contrary is
proved, and if such record shall also be signed and verified by the affidavit of
a duly authorized representative of the Trustee, such meeting shall be deemed
conclusively to have been duly convened and held and such record shall be
conclusive, and any resolution or proceeding stated in such record to have been
adopted or taken shall be deemed conclusively to have been duly adopted or taken
by such meeting. A true copy of any resolution adopted by such meeting shall be
mailed by the Trustee to each registered holder of bonds entitled to vote at
such meeting outstanding hereunder addressed to him at his address appearing on
the registry books and to each holder of any such bond payable to bearer who
shall have filed with the Trustee an address for notices, and to every other
bondholder whose name and address is preserved at the time by the Trustee, as
provided in subdivision (a) of Section 51 hereof, in each case addressed to him
at such address, and proof of such mailing by the affidavit of some person
having knowledge of the fact shall be filed with the Trustee, but failure to
mail copies of such resolution as aforesaid shall not affect the validity
thereof. No such resolution shall be binding until and unless such resolution is
approved by resolution of the Board of Directors of the Company, a copy of which
resolution of approval, if any, shall be certified by the Secretary or an
Assistant Secretary of the Company and filed by the Company with the Trustee,
but if such resolution of the Board of Directors of the Company is adopted and a
certified copy thereof is filed with the Trustee, the resolution so adopted
shall be deemed conclusively to be binding upon the Company, the Trustee and the
holders of all bonds and coupons issued hereunder, at the expiration of sixty
(60) days after such filing, except in the event of a final decree of a court of
competent jurisdiction setting aside such resolution, or annulling the action
taken thereby in a legal action or equitable proceeding for such purposes
commenced within such sixty (60) day period, provided, however, that no such
resolution of the bondholders, or of the Company, shall in any manner be so
construed as to change or modify any of the rights, immunities or obligations of
the Trustee without its written assent thereto.
SECTION 126. Bonds authenticated and delivered after the date of any
bondholders' meeting may bear a notation in form approved by the Trustee as to
the action taken at meetings of bondholders theretofore held, and upon demand of
the holder of any bond outstanding at the date of any such meeting and affected
thereby and upon presentation of his bond for the purpose at the principal
office of the Trustee, the Company shall cause suitable notation to be made on
such bond by endorsement or otherwise as to any action taken at any meeting of
bondholders theretofore held. If the Company or the Trustee shall so determine
new bonds so modified as in the opinion of the Trustee and the Board of
Directors of the Company to conform to such bondholders' resolution shall be
prepared, authenticated and delivered, and upon demand of the holder of any bond
then outstanding and affected thereby shall be exchanged without cost to such
bondholder for bonds then outstanding hereunder upon surrender of such bonds
with all unmatured coupons appertaining thereto. The Company or the Trustee may
require bonds outstanding to be presented for notation or exchange as aforesaid
if either shall see fit to do so. Instruments supplemental to this Indenture
embodying any modification or alteration of this Indenture or of any indenture
supplemental hereto made at any bondholders' meeting and approved by resolution
of the Board of Directors of the Company, as aforesaid, may be executed by the
Trustee and the Company and upon demand of the Trustee or if so specified in any
resolution adopted by any such bondholders' meeting, shall be executed by the
Company and the Trustee.
Any supplemental indenture executed pursuant to the provisions of this
Article shall comply with all applicable provisions of the Trust Indenture Act
of 1939 as then in force.
SECTION 127. Notwithstanding anything in this Article XX contained, the
Company may at any time, or from time to time, by resolution of the Board of
Directors filed with the Trustee, stipulate that from and after the date of the
filing of such resolution with the Trustee none of the provisions of this
Article XX shall be of any force and effect whatever either as respects (1) all
bonds theretofore authenticated and delivered by the Trustee hereunder and then
outstanding and/or (2) a to any bonds and/or all bonds thereafter authenticated
and delivered by the Trustee hereunder, and in any such event a supplemental
indenture setting out in detail the stipulations contained in such resolution
shall be made.
ARTICLE XXI.
MISCELLANEOUS.
SECTION 128. Nothing in this Indenture, expressed or implied, is intended
or shall be construed, to confer upon, or to give to, any person firm or
corporation, other than the parties hereto and the holders of the bonds and
coupons outstanding hereunder, any right, remedy, or claim under or by reason of
this Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and agreements
in this Indenture contained by and on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto, and of the holders of the
bonds and of the coupons outstanding hereunder.
SECTION 129. Any money which has been deposited with the Trustee (other
than money which has been deposited with the Trustee for the purpose of
effecting payment or redemption of or payment of interest on any bonds issued
hereunder or which the Trustee has been directed to hold and apply for the
purpose of such payment or redemption) shall, at the request of the Company
evidenced by a resolution, be invested or reinvested by the Trustee in any bonds
or other obligations of the United States of America designated by the Company
maturing not more than two years from the date of their purchase by the Trustee,
and until a completed default specified in Section 72 hereof shall have occurred
and be continuing, any interest on such bonds and obligations which may be
received by the Trustee shall be forthwith paid to the Company. Such bonds and
obligations shall be held by the Trustee as a part of the mortgaged and pledged
property and subject to the same provisions hereof as the cash used to purchase
the same, but upon a like request of the Company, the Trustee shall sell all or
any designated part of the same and the proceeds of such sale shall be held by
the Trustee subject to the same provisions hereof as the cash used by it to
purchase the bonds and obligations so sold. If such sale (or any payment on the
maturity of any such obligations so held by the Trustee) shall produce a net sum
less than the cost of the bonds or other obligations so sold, the Company
covenants that it will pay promptly to the Trustee such amount of cash as with
the net proceeds from such sale or such payment will equal the cost of the bonds
or other obligations so sold or paid, and if such sale (or any payment on the
maturity of any such obligations so held by the Trustee) shall produce a net sum
greater than the cost of the bonds or obligations so sold or paid, the Trustee
shall promptly pay to the Company an amount in cash equal to such excess.
SECTION 130. In the event that any bond issued hereunder shall not be
presented for payment when the principal thereof becomes due, either at maturity
or otherwise, or at the date fixed for the redemption thereof, or in the event
that any coupon shall not be presented for payment at the due date thereof, the
Company, having deposited with the Trustee, or with a paying agent of the
Company appointed herein or as permitted hereunder, for the purpose, or having
left with it if previously so deposited, moneys sufficient to pay the principal
of such bond (and premium, if any), together with all interest due thereon to
the date of the maturity of such bond or to the date fixed for the redemption
thereof, or to pay such coupon, as the case may be, for the use and benefit of
the holder thereof, the Trustee or paying agent with which such deposit was made
shall hold the money so deposited for the benefit of the holder of such bond or
overdue coupon, as the case may be. In case the holder of any such bond or
coupon shall not, within ten (10) years after such redemption or maturity date,
claim the amount deposited as above stated, for the payment thereof, the Trustee
and such paying agent shall, upon receipt by each of them of such indemnity, if
any, as they may severally require, on demand pay over to the Company such
amount so deposited, if the Company is not at the time in default hereunder; and
the Trustee and such paying agent shall thereupon be relieved from all
responsibility to the holder thereof, and in the event of such payment to the
Company the holder of any such bond or coupon shall be deemed to be an unsecured
creditor of the Company for an amount equivalent to the amount deposited as
above stated for the payment thereof and so paid over to the Company.
SECTION 131. Any power, privilege or right expressly or impliedly reserved
to or in any way conferred upon the Company by any provision of this Indenture,
whether such power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or subjected to
any restriction if at the time unrestricted or to additional restriction if
already restricted, and the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more series of bonds
issued hereunder and provide that a breach thereof shall be equivalent to a
default under this Indenture or the Company may cure any ambiguity or correct or
supplement any defective or inconsistent provisions contained herein or in any
supplemental indenture, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a conveyance of real
estate to record in all of the states in which any property at the time subject
to the lien hereof shall be situated. The Trustee is hereby authorized to join
with the Company in the execution of any such instrument or instruments. Such
instrument, executed and acknowledged as aforesaid, shall be delivered to the
Trustee and thereupon if such instrument shall have been signed by the Trustee
any modification of the provisions of these presents therein set forth,
authorized by this Section, shall be binding upon the parties hereto, their
successors and assigns, and the holders of the bonds and coupons hereby secured.
Anything herein to the contrary notwithstanding, this Section shall not be
construed to permit any act, waiver, surrender or restriction adversely
affecting any bonds then outstanding hereunder.
SECTION 132. Subject to the provisions of Article XVII hereof, whenever in
this Indenture either of the parties hereto is named or referred to (except in
subdivision (1) of Section 5 hereof), this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Indenture contained by or on behalf of the Company or by or on behalf of
the Trustee shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
SECTION 133. If any provision of this Indenture limits, qualifies or
conflicts with another provision of this Indenture which has been included
pursuant to any requirements of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such required provisions shall control.
SECTION 134. Whenever reference is made in this Indenture to the Trust
Indenture Act of 1939, reference is made to such Act as approved August 3, 1939.
SECTION 135. The titles of the several Articles of this Indenture shall not
be deemed to be any part thereof.
SECTION 136. This Indenture shall be simultaneously executed in several
counterparts, and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, INDIANAPOLIS POWER & LIGHT COMPANY, party hereto of the
first part, has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or a Vice-President, and its
corporate seal to be attested by its Secretary or an Assistant Secretary for and
in its behalf, and American National Bank and Trust Company of Chicago, party
hereto of the second part, in token of its acceptance of the trust hereby
created, has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by a Vice-President and its corporate seal to
be attested by its Assistant Secretary.
INDIANAPOLIS POWER & LIGHT COMPANY,
By XXXXX X. XXXXXXXXX,
President.
Attest:
(CORPORATE SEAL)
XXXXX X. XXXXX,
Secretary.
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO,
By X. X. XXXXXX,
Vice-President.
(CORPORATE SEAL)
Attest:
E. L. XXXXXXX,
Assistant Secretary.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of July, in the year 1940, before me, a Notary Public in
and for the County and State aforesaid, personally came Xxxxx X. Xxxxxxxxx,
President, and Xxxxx X. Xxxxx, Secretary of Indianapolis Power & Light Company,
one of the corporations described in and which executed the foregoing Indenture,
to me personally known and known to me personally to be such President and
Secretary, respectively. Said Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxx being by me
severally duly sworn did depose and say that the said Xxxxx X. Xxxxxxxxx resides
in the City of Indianapolis, Xxxxxx County, Indiana, and that the said Xxxxx X.
Xxxxx resides in the City of Indianapolis, Xxxxxx County, Indiana; that said
Xxxxx X. Xxxxxxxxx is President and said Xxxxx X. Xxxxx is Secretary of said
Indianapolis Power & Light Company; that each of them knows the corporate seal
of said corporation; that the seal affixed to said Indenture and bearing the
name of said corporation is such corporate seal; that is was so affixed by order
of the Board of Directors and stockholders of said corporation; and that each of
them signed his name thereto by like order; and each of them acknowledged the
execution of said Indenture on behalf of said corporation to be his free and
voluntary act and deed and the free and voluntary act and deed of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this 11th day of July, 1940.
XXXX X. XXXXXXXX, XX.
Notary Public
My Commission Expires
Notary Public, New York County
N.Y. Co. Clk's No. 415 Reg. 1W540
Commission Expires March 30, 1941
(NOTARIAL SEAL)
No. 00000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
I, XXXXXXXXX X. XXXXXX, County Clerk, and Clerk of the Supreme Court, New
York County, the same being a Court of Record having by law a seal, Do HEREBY
CERTIFY, That XXXX X. XXXXXXXX, XX., whose name is subscribed to the deposition
or certificate of the proof or acknowledgment of the annexed instrument, and
thereon written, was, at the time of taking such deposition, or proof and
acknowledgment, a Notary Public in and for such County, duly commissioned and
sworn, and authorized by the laws of said State, to take depositions and to
administer oaths to be used in any Court of said State and for general purposes;
and also to take acknowledgments and proofs of deeds, of conveyances for land,
tenements or hereditaments in said State of New York. And further, that I am
well acquainted with the handwriting of such Notary Public, or have compared the
signature of such officer with that deposited in my office by him, and believe
that the signature to said deposition or certificate of proof or acknowledgment
is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
said Court and County this 11th day of July, 1940.
XXXXXXXXX X. XXXXXX
County Clerk and Clerk of the Xxxxxxx Xxxxx,
Xxx Xxxx Xxxxxx
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On this 12th day of July, in the year 1940, before me, a Notary Public in
and for the County and State aforesaid, personally came X. X. XXXXXX, Vice
President, and E. L. XXXXXXX, Assistant Secretary of American National Bank and
Trust Company of Chicago, one of the corporations described in and which
executed the foregoing Indenture, to me personally known and known to me
personally to be such Vice President and Assistant Secretary, respectively. Said
X. X. XXXXXX and E. L. XXXXXXX, being by me severally duly sworn did depose and
say that the said X. X. XXXXXX resides in the City of Evanston, State of
Illinois and that the said E. L. XXXXXXX resides in the City of Highland Park,
State of Illinois; that said X. X. XXXXXX is Vice President and said E. L.
XXXXXXX is Assistant Secretary of said American National Bank and Trust Company
of Chicago; that each of them knows the corporate seal of said corporation; that
the seal affixed to said Indenture and bearing the name of said corporation is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that each of them signed his name thereto by
like authority; and each of them acknowledged the execution of said Indenture on
behalf of said corporation to be his free and voluntary act and deed and the
free and voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this 12th day of July, 1940.
XXXXXXX XXX
Notary Public
My Commission Expires
September 24, 1942
(Notarial Seal)
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
I, XXXXXXX X. XXXXX, County Clerk of the County of Xxxx, Do HEREBY CERTIFY
that I am the lawful custodian of the official records of Notaries Pubic of said
County, and as such officer am duly authorized to issue certificates of
magistracy, that XXXXXXX XXX, whose name is subscribed to the proof of
acknowledgment of the annexed instrument in writing, was, at the time of taking
such proof of acknowledgment, a Notary Public in and for Xxxx County, duly
commissioned, sworn and acting as such and authorized to take acknowledgments
and proofs of deeds or conveyances of lands, tenements or hereditaments, in said
State of Illinois, and to administer oaths; all of which appears from the
records and files in my office; that I am well acquainted with the handwriting
of said Notary and verily believe that the signature to the said proof of
acknowledgment is genuine.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of
the County of Xxxx at my office in the City of Chicago, in the said County, this
12th day of July, 1940.
XXXXXXX X. XXXXX, County Clerk.
RECORDING DATA
Instrument
County Instrument Record Page No.
------ ---------- ------ ---- ----------
Xxxxx Real Estate Mortgage Mortgage Record 101 119 4402
Xxxxx Chattel Mortgage Chattel Minute Record 5 244 4403
Xxxxxxxx Real Estate Mortgage Mortgage Record 94 21 3769
Xxxxxxxx Chattel Mortgage Chattel Minute Record 2 59 3770
Xxxxxxx Real Estate Mortgage Mortgage Record 75 203 10299
Xxxxxxx Chattel Mortgage Chattel Minute Record 4 -- 10300
Xxxxxxxxx Real Estate Mortgage Mortgage Record 106 238 172
Xxxxxxxxx Chattel Mortgage Chattel Minute Record 4 10 173
Xxxxxxx Real Estate Mortgage Mortgage Record 80 228 6879
Xxxxxxx Chattel Mortgage Chattel Minute Record 3 144 6880
Xxxxxx Real Estate Mortgage Mortgage Record 1230 81 29062
Xxxxxx Chattel Mortgage Chattel Minute Record 33 149 29063
Pike Real Estate Mortgage Mortgage Record 21 -- 1927
Pike Chattel Mortgage Chattel Minute Record 2 141 1928
Xxxxxxxx Real Estate Mortgage Mortgage Record 104 534 26187
Xxxxxxxx Chattel Mortgage Chattel Minute Record 4 7 26188
